1. Notice of this petition was given to respondents despite due and proper ser vice, they are absent.
2. This motion of revision is aimed at revising the order dated 28.05.2001, re corded by the learned 2nd Addl. Munsiff Srinagar, in Civil Original
suit titled Mohd Amin Shah vs. Jameel Ahmad and ors. with respect to an application of the petitioner revisionist for impediment of party in the
suit.
3. It appears that a suit for declaration with consequental relief of possession came to be instituted by respondent No. 1 plaintiff, Motid Amin Shah
against the defendant, remaining respondents herein before the court of learned District Judge, Srinagar, who came to transfer the suit file to the
court of learned 2nd Addl. Munisff Srinagar. In the suit, the plaintiff respondent No. 1 has sought decree for declaration with respect to the suit
land with a consequential relief of perpetual injunction against the remaining respondents/defendants who came to admit the suit of the plaintiff by
virtue of their joint written statement. During the pendency of the suit Ghuiam Mohd Shah alias Gulla Shah S/o Ghulam Rasool Shah alias Rasool
Shah, the petitioner herein filed an application presumably under Order 1 Rule 10 of the CPC, claiming therein that he is owner of the suit land
alongwith the plaintiff and the defendants, as the same being their an central property and is undivided and joint in between him and the parties of
the suit. This application came to be resisted by the plaintiff respondent No. 1 on the ground that he and defendants No. 5 are in peace ful
possession of the suit property as the same being the self acquired property of his there and defendant No. 5 and father of defendants 1 to 4 and
that the applicant had instituted a suit for partition and possession against the plaintiff and their father way back in 1955, which came to be
dismissed and that in case the petitioner has any right or interest the same is time barred.
4. Heard the learned counsel for the petitioner.
5. It is well settled principle of law that court has a discretion to impiead any person as a party to the suit whose presence is found necessary to
enable it to effectually and completely to adjudicate upon all the points involved in the suit. Besides this, the court can also consider if the person
seeking his impediment as party has a primafacie case and a bonafide claim to the settlement of the suit property. Their Lordships of the Apex
Court in a case titled as Razia Begum vs. Anwar Begum reported in AIR 1958 S.C. 886, have laid down the following principles to add parties in
a suit under Rule 10 Order 1 CPC, which are enumerated as :
1. That the question of addition of parties under r.10 of 0.1 of the Code of Civil Procedure is generally not one of initial jurisdiction of the court but
of a judicial direction which has to be exercised in view of all the facts and circum stances of a particular case; but in same cases, if may raise
controversies as to the power of the court in contradistinction to its inherent jurisdiction or, in other words, of jurisdiction in the limited sense in
which it used in S.115 of the Code;
2. That in a suit relating to property, in order that a person may be added as a party he should have a direct interest as distinguished from a
commercial interest, in the subject matter of the litigation.
3. Where the subjectmatter of a litigation is a declaration as regards status or a legal character the rule of present or direct interest may be relaxed
in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate
upon the controversy;
4. The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Section 42 and 43 of the
Specific Relief Act.
6. If the aforesaid principles as laid down by the Apex Court are applied to the, case in hand, I find that in this suit for declaration of his rights filed
by the plaintiff/respondent No. 1, revisionist Gulla Shah, has claimed direct interest in the suit property on the strength of being its coowner
alongwith the parties of the suit and that be claims the said property as joint in between him and the parties as the same being ancestrial property.
The fact that the suit for partition of this land instituted by the petitioner way back in 1955, has been dismissed, does by no stretch of imagination
preclude him from defending his alleged right to the suit property, which as per the court below has become time barred forgetting that the laws of
limitation are not meant to destroy the rights of the parties, they are meant to see that the parties do not resort to dilatory tactics and seek their
remedy within time fixed by the legislature. The defendants/respondents having admitted the claim of the plaintiff respondent No. 1, in such
circumstances, it becomes all the more desirable that the claim made by the petitioner should be enquired into more closely instead of merely
passing a collusive decree. Therefore, impediment of Gulla Shah revisionist in the suit is necessary for the proper adjudication about the title to the
property.
7. In view of the aforesaid discussion, the trial court has fallen in juridictional error and material irregularity in passing the impugned order which has
resulted injustice to the petitioner revisionist.
8. Therefore, this revision is accepted and the order impugned is set aside. The trial court is directed that the application of the petitioner of his
impleadment as party be accepted and he be added as a defendant. No costs. The record alongwith the copy of this order be sent to the trial court
for disposal in the light of the aforesaid observations and in accordance with law and after issuance of notice to the Respondents. The petitioner is
directed to cause his appearance be fore the trial court on 28.02.2002.
