Razia Begum Vs. Sahebzadi Anwar Begum
& Ors [1958] INSC 62 (23 May 1958)
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1958 AIR 886 1959 SCR 1111
ACT:
Civil Procedure-Addition of
parties-Declaratory suit-Claim of status as married wife Admission by
husband-Right of wife and son denying plaintiff's claim, to be added as PartiesMohammedan
law-Code of Civil Procedure (Act V of 1908), O. I, r 10(2)-Specific Relief Act
(1 of 1877), ss. 42, 43.
HEADNOTE:
The appellant instituted a suit against the
third respondent, inter alia, for a declaration that she was his lawfully
married wife, alleging that though the fact of her marriage was known to all
who knew him, he was trying to suppress the facts in such a way that the
members of his family should conclude that she was not his Nikah wife, that he
refused to openly acknowledge her as his legally wedded wife and that this
conduct on his part had cast a cloud on her status as such wife and was
affecting the rights of the issue of the marriage, her three daughters. The
third respondent filed his written statement admitting the claim, but on the
same date respondents i and 2 made an application under 0. i, r. 10(2), of the
Code of Civil Procedure for being impleaded in the suit as defendants on the
grounds that they were respectively the wife and son of the third respondent,
that they were interested in denying the appellant's status as wife and the
status of her children is the legitimate children of the third respondent, that
the suit was the result of a collusion between the appellant and the third
respondent and that if the appellant was declared to be lawfully wedded to the
third respondent, the rights and interests of respondents i and 2 in the estate
of the third respondent would be affected. The application was contested by
both the appellant and the third respondent.
The trial court allowed the application and
the order was confirmed by the High Court in its revisional jurisdiction.
The question was whether the lower courts did
not exceed their powers in directing the addition of respondents i and 2 as
parties-defendants in the action :
Held (per Sinha and Kapur jj. Imam J.,
disscenting), that in view of the averments in the plaint which showed that not
only the third respondent but the other members of his family, including
respondents i and 2, were interested in denying the appellant's status as a
legally wedded wife, respondents i and 2 were proper parties to the suit.
The question of addition of parties under O.
I, r. 10, of the Code of Civil Procedure is generally not one of initial
Jurisdiction of the court, but of a judicial discretion ; in a suit for a
declaration as regards status or a legal character under S. 42 Of 1112 the
Specific Relief Act, the rule that in order that a person may be added as a
party he must have a present or direct interest in the subject-matter of the
suit, is not wholly applicable, and the rule 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.
In such suits the court is not bound to grant the declaration prayed for, on a
mere admission of the claim by the defendant, if the court has reasons to
insist upon clear proof, apart from the admission.
A declaratory judgment in respect of a
disputed status will be binding not only upon the parties actually before the
court but also upon persons claiming through them respectively, within the
meaning of s. 43 Of the Specific Relief Act. The word " respectively
" in the section has been used with a view to showing that the parties
arrayed on either side, are really claiming adversely to one another, so far as
the declaration is concerned.
Per Imam J.-The facts of the present case do
not justify the addition of respondents i and 2 as defendants under the
provisions of 0. i, r. 1O(2), of the Code of Civil Procedure, because..:(1)There
is nothing in the pleadings to suggest that respondents 1and 2 were denying the
appellant's status as wife of the third respondent, and the court ought not to
compel the plaintiff to add parties to the suit where on the face of the
pleadings plaintiff has no cause of action against them.
(2)Under the Mohammedan law a man is entitled
to have four wives at one and the same time and, consequently, as the third
respondent has admitted that the appellant was married to him, respondents i
and 2 have no locus standi to make any representation in the suit that there
was collusion between the appellant and the third respondent.
(3)During the lifetime of the third
respondent neither the appellant nor her children on the one hand nor
respondents i and 2 on the other have any rights in his estate, under the
Mohammedan law.
(4)Assuming that a declaration in the suit
would be binding upon respondents i and 2, which is doubtful having regard to
the terms of S. 43 of the Specific Relief Act, that would be no justification
for their being impleaded in the suit where the issue is not one of inheritance
but one of marriage between the appellant and the third respondent.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 695 of 1957.
Appeal by special leave from the judgment and
order dated September 17, 1957, of the Andhra 1113 Pradesh High Court in Civil
Revision Petition No. 1112 of 1957 arising out of the order dated July 6, 1957,
of the Court of the Second Additional Judge, City Civil Court, Hyderabad
(Decan), made on the application under 0. 1, r.
10, (C. P. C. in Original Suit No. 43/1 of
1957.
M.C. Setalvad, Attorney-General for India, C.
K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional
Solicitor-General of India, N. C. Chatterjee, Syed Mohasim, Akbar Ali Mosavi,
H. J. Umrigar, 0. N. Srivastava, J. B. Dadachanji, S. N. Andley, Rameshwar Nath
and P. L. Vohra, for the appellant.
Purshottam Tricumdas, Anwarull Pusha and G.
Gopalakrishnan, for respondent No. 1.
Sir Sultan Ahmed, A. Ramaswami Iyengr C.
Chakravarthy, S. Ranganathan and G. Gopalakrishan, for respondent No. 2.
G.S. Pathak, A. V. Viswanatha sastri, Mohd.
Yunus Saleem, Ghulam Ahmed Khan, Choudhary Akhtar Hussain, Shaukat Hussain and
Sardar Bahadur, for respondent No. 3.
1958. May 23. The judgment of B. P. Sinha and
J. L. Kapur JJ. was delivered by Sinha J. Jafer Imam J. delivered a separate
judgment.
SINHA J.-This appeal by special leave is
directed against the concurring judgments and orders of the courts below,
allowing the intervention of respondents I and 2 and adding them as defendants
2 and 3 in the suit instituted by the appellant against her alleged husband,
now respondent 3, who was the sole defendant in the suit as originally framed.
The main question in controversy in this
appeal is the true construction of sub-r. (2) of r. 10 of 0. 1 of the Code of
Civil Procedure, and its application to the facts of this case which are given
below:On April 12, 1957, the plaintiff-appellant in this Courtinstituted the
suit out of which this appeal arises against the third respondent who is the
second son of His Exalted Highness the Nizam of Hyderabad, and who will,
hereinafter, be referred to as the Prince.
1114 In the plaint she alleged that she is
the lawfully married wife of the Prince, the marriage ceremony (Nikah) having
been solemnized in accordance with the Shia Law by a Shia Mujtahid on October
19, 1948. The plaintiff also averred that the issue of the marriage were three
daughters aged 8, 7 and 5 years; that the fact of the marriage was known to all
persons acquainted with the Prince; that there was a prenuptial agreement,
whereby the Prince agreed to pay Rs.
2,000 per month to the plaintiff as
Kharch-e-pandan; that the Prince stopped the payment of the allowance aforesaid
of Rs. 2,000 per month, since January, 1953, without any reasons and in
contravention of the said agreement. On these allegations, she asked for the
following two declarations:(1)That the plaintiff be declared to be the
legally-wedded wife (Mankuha) of the defendant, (2)That a decree be passed in
favour of this plaintiff against the defendant declaring her to be entitled to
receive from the defendant 1. G. Its. 2,000 per month as Kharch-e-pandan."
It may be noted that she did not make any claim for arrears of the allowance
aforesaid since the date the Prince is alleged to have stopped payment of the
same. Only ten days later, on April 22, 1957, the Prince filed his written
statement, admitting the entire claim of the plaintiff for the two declarations
aforesaid. On that very date, an application under 0. 1, r. 10, of the Code of
Civil Procedure, on behalf of (1) Saliebzadi Anwar Begum, and (2) Prince
Shahainat Ali Khan, minor, under the Guardianship of his mother, they said
Sahebzadi, was made. They are respondents I and 2 respectively in this Court.
The Sahebzadi, respondent 1, claimed to be the " lawful and legally wedded
wife" of the Prince, and respondent 2, the son of the Prince by the first
respondent. In their petition they stated inter alia: " The plaintiff
herself has stated in the plaint that the defendant is trying to suppress the
facts of his marriage with the plaintiff so that the members of his family
should conclude that the plaintiff is not his Nikah wife, and the defendant is
interested in denying the rights and status of the plaintiff.
1115 The petitioners on being joined as
parties to the suit will be equally interested in denying the marriage of the
plaintiff and her rights and status.......... The petitioners have reasons to
believe that the above suit is a result of collusion. The object and motive of
the plaintiff in instituting the above suit is to adversely affect the
relationship of the petitioners and the defendant and also to deprive the
rights and interests of the petitioners in the defendant's estate." On
June 15, 1957, the plaintiff made an answer to the petition for intervention,
filed by respondents I and 2 aforesaid. She denied the right of the interveners
to be impleaded in that suit, and asserted that the " possibility of the
rights of the petitioners being infringed are very remote, contingent upon their
or plaintiff surviving the defendant or other circumstances which may or may
not arise." She also founded her objection on the ground that, having
regard to the admission of the defendant in his written statement, " there
is no serious controversy in the suit." She also added a number of legal
objections which need not be specifically noticed as they have not been pressed
in this Court. She further asserted that the petitioners (meaning thereby,
respondents I and 2) are neither necessary nor proper parties to the suit. She
anticipated the ground most hotly contested in this Court, by asserting that
the " judgment of this Hon'ble Court in this suit will not be conclusive
as against petitioners as they allege collusion and they will not be prejudiced
by not being made parties." She ends her statement by making the following
significant allegation:" The alleged collusion and motive attributed to
the plaintiff for instituting this suit are denied. On the other hand, the
application to be added as defendants is mala fide and malicious and is
evidently inspired by some strong force behind them interested in harassing the
plaintiff and exposing her to the risk of a vexatious and protracted
litigation." The Prince, in his own answer to the application for intervention,
stated that he admitted that the first 142 1116 respondent is his wife and that
the second respondent is his son, and repeated his admission by saying that lie
married the plaintiff in October, 1948, and the first respondent in December
1952. He added further that when he married the first respondent, he had
already three daughters by the plaintiff, which fact was known to the first
respondent at the time of her marriage with him. He supported the plaintiff in
her objection to the intervention by asserting that the rights of respondents 1
and 2 will not be affected in any way, and by insisting upon his Muslim right
of having four wives living at the same time. He also supported the plaintiff
in her denial of the allegation of collusion and " that the suit is
intended to adversely affect the relationship of the petitioners and the
defendant respondent and to deprive the rights and interests of the petitioners
in the defendant-respondent's estate. " He, in his turn, added the
following equally significant penultmate para:" That the petitioners'
application has been filed in order to prolong the litigation and that the
defen. dantresponaent's father His Exalted -Highness the -Nizam, appears to be
more interested than petitioner No. 1 herself, in creating unnecessary
complications in the suit. " On these allegations and counter allegations,
after hearing the parties, the trial court, by its judgment and order dated
July 6, 1957, allowed the application for intervention, and directed
respondents 1 and 2 to be added as defendants. The court, after discussing all
the contentions raised on behalf of the parties, observed that there were
indications in the record of a possible collusion between the plaintiff and the
defendant; that the relief claimed under s. 42 of the Specific Relief Act,
being discretionary, could not be granted as of right ; that the presence of
the interveners would help the court in unraveling the mysteries of the
litigation, and that there was force in the contention put forward on behalf of
the interveners that under s. 43 of the Specific Relief Act, any declaration
given in favour of the plaintiff will be binding upon the interveners. It also
held that in order effectually and completely to 1117 adjudicate upon and
settle the present controversy, the presence of the interveners was necessary.
The plaintiff moved the High Court of
Judicature of Andhra Pradesh, at Hyderabad, under s. 115 of the Code of Civil
Procedure, to revise the aforesaid order of the learned trial judge. The High
Court, in a well considered judgment, after discussing the points raised for
and against the addition of the parties, and noticing almost all the
authorities quoted before us, refused to interfere with the discretion
exercised by the trial court, and dismissed the revisional application. It came
to the conclusion that the first respondent, the admitted wife of the
defendant, and the second respondent, the admitted son by her, are interested
in denying the status claimed by the plaintiff, and " have some rights against
the estate of the 3rd respondent. The learned Judge of the High Court further
observed When so much sanctity is attached to the status of marriage, it would
indeed be strange that persons who are so intimately related to the 3rd
respondent as wife and son, should be denied the opportunity of contesting the
status of the petitioner as his lawfully married wife............ It cannot be
that the petitioner is seeking any empty relief carrying with it the stamp of
futility and it is difficult to assume that she is fighting a vain or
purposeless litigation. If what she is seeking is a relief which will carry
with it certain legal incidents, are not persons interested in denying her
status proper parties to the litigation ? " The Court also observed that
it was with a view to avoiding multiplicity of suits that r. 10(2) of 0.
1, had made provision for adding parties. The
Court noticed the argument under s. 43 of the Specific Relief Act, but did not
express any final opinion, because, in its view, it had already reached the
" conclusion that the proposed parties are persons whose presence before
the court is necessary within the meaning of 0. 1, r. 10 (2), so as to ensure
that the dispute should be finally determined once for all in the presence of
all the parties interested." Against the judgment of the High Court,
refusing to set aside the order passed by the learned trial judge, 1118 the
plaintiff moved this Court and obtained special leave to appeal.
In the forefront of his arguments in support
of the appeal, the learned Attorney-General submitted that the court had no
jurisdiction to add the first two respondents as defendants in the suit. He
relied upon the words of the relevant portion of sub-rule (2) of r. 10 of O. I
of the Code, which are as follows:
" (2)............... and that the name
of any person who ought to have been joined, whether as plaintiff or defendant,
or whose presence before the Court may be necessary in order to-enable the
Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
He rightly pointed out, and there was no
controversy between the parties before us, that the added defendants do not
come within the purview of the words " who ought to have been joined
", which apparently have reference to necessary parties in the sense that
the suit cannot be effectively disposed of without their presence on the
record. The learned Attorney-General strenuously argued that it cannot be
asserted in this case that the presence of the added defendants respondents 1
and 2-before the court was necessary in order to enable the court effectually
and completely to adjudicate upon and settle all the questions involved in the
suit. He founded this argument on the legal position that the wife and the son
of the Prince respondents I and 2-have no present interest in his estate. Their
expectancy of succession to the estate of the Prince does not clothe them with
any right vested or contingent to intervene in this action. In this connection,
he pointed out that r. 10 of the Code of Civil Procedure, which corresponds to
portions of 0. 16, r. 11, of the Rules of the Supreme Court in England, has
been the subject-matter of judicial interpretation in many cases. Both, in this
country and in England, there have been two currents of judicial opinion, one
taking what may be called the narrower view, and the other, the wider view. As
illustrations of the former, that is to say, the narrower 1119 view, may be
cited the cases of Moser v. Marsden (1) and McCheane v. Gyles (No. 2) (2). In
India, this view is represented by the decision in the case of Sri Mahant
Prayaga Doss Jee Varyu v. The Board of Commissioners for Hindu Religious
Endowments, Madras (3). On the other side of the line, representing the wider view,
may be cited the case of Dollfus Mieg Et Compagnie S. A. v. Bank of England
(4). In India, the decisions of the Madras High Court, in the cases of
Vydianadayyan v. Sitaramayyan (5) and Secy. of State v. M. Murugesa Mudaliar
(6), were cited as illustrations. But it was contended on behalf of the
appellants that whether the narrower or the wider view of the interpretation of
sub-r. (2) of r. 10 of 0. I of the Code of Civil Procedure is taken, the
result, so far as the present controversy is concerned, would be the same. In
the leading case of Moser v. Marsden (1), Lindley L. J. has held that a party
who is not directly interested in the issues between the plaintiff and the
defendant, but is only indirectly or commercially affected, cannot be added as
a defendant because the court has no jurisdiction, under the relevant rule, to
bring him on the record even as a " proper party ". That was a suit
to restrain the alleged infringement of the plaintiff’s patent by the
defendant, Marsden. The Court held, reversing the order of the trial judge,
that the party sought to be added had no direct interest in. the subject-matter
of the litigation, and all that could have been said on behalf of the party
intervening was that the judgment against the defendant would affect his
interest commercially. The Court distinguished the previous decisions in
Vavasseur v. Krupp(7) and Apollinaris Company v. Wilson (8), on the ground that
in those cases the litigation would have affected the property of the persons
not before the court. This leading case of Moser v. Marsden (1) is clearly an
authority for the proposition that the court has jurisdiction to add as a party
defendant only a person (1) [1892] 1 Ch. 487.
(2) [1902] 1 Ch. 911.
(3) (1926) I. L. R. 50 Mad. 34.
(4) [195O] 2 All E. R. 605.
(5) (1881) I. L. R. 5 Mad. 5.2.
(6) A. I. R. 1929 Mad. 443.
(7) (1878) 9 Ch. D. 351 .
(8) (1886) 31 Ch. D. 632.
1120 who is directly interested in the
subject-matter of the litigation and not a person who will be only indirectly
or commercially affected. Kay L. J. who agreed with Lindley L.
J. in that case, observed that the relevant
rule of the Supreme Court, on its proper construction, authorized the court to
add only such persons as would be bound by the judgment to be given in the action,
but did not authorize the court to add any persons who would not be so bound
and whose interest may only indirectly be affected in a commercial sense. To
the same effect is the decision in Re I. G.
Farbeninadusrie A. G. Agreement (1). The
Court held that in order that a party may be added as a defendant in the suit,
he should have a legal interest in the subject-matter of the litigation-legal
interest not as distinguished from an equitable interest, but an interest which
the law recognizes. Lord Greene M. -R. giving the judgment of the Court, also
observed that the court had. no jurisdiction to add a person as a party to the
litigation if he had no legal interest in the issue involved in the case. In
the case of Vydianadayyan v. Sitaramayyan (2), in which the wider view of the
interpretation of the relevant rule was taken, Turner C. J. delivering the
judgment of the Court, observed that the wider interpretation which enabled the
court to avoid conflicting decisions on the same question and which would
finally and effectually put an end to the litigation respecting it, should be
adopted. But in that case also the party added as defendant was interested in
the subjectmatter of the litigation, though there was no impediment to the
court determining the issues between the parties originally before the court.
The learned Judge, on a discussion of the English and Indian cases on the
subject, came to the conclusion that a material question common to all the
parties to the suit and to third parties should be tried once for all. He held
that to secure this result the court bad a discretion to add parties-a
discretion which has to be judicially exercised, that is, that by adding the
new parties the court should not inflict injustice upon the parties already on
the record, in the sense (1) [1943] 2 All E. R. 525.
(2) (1881) I.L.R. 5 Mad. 52.
1121 that they would be prejudiced in the
fair trial of the questions in controversy.
The two Madras decisions in Sri Mahant
Prayaga Doss Jee Varu v. The Board of Commissioners for Hindu Religious
Enclowmentg, Madras (1) and Secy. of State v. M. Murugesa Mudaliar (2) appear
to have taken conflicting views on the question whether Government could be
added as a party to the litigation not because it was directly interested in the
subjectmatter of the litigation, but because the law enacted by the legislature
of that State had been questioned. this controversy appears to have been raised
in the Federal Court in the case of The United Provinces v. Mst. Atiqa Begum
(3). In that case the provincial legislature of the United Provinces, as it
then was, had enacted the United Provinces Regularization of Remissions Act
(XIV of 1938) precluding the courts from entertaining any question as to the
validity of certain orders of remission of rents. The validity of that Act was
questioned in a litigation between a landlord and his tenants. At the High
Court stage the Provincial Government was added as a party to the litigation at
the instance of the Advocate-General, with a view to enabling the Government to
come up in appeal to the Federal Court in order to obtain a more authoritative
pronouncement on the vales of the Act. In the Federal Court the power of the
High Court to add the Provincial Government as a party was specifically
questioned. Gwyer C. J. noticed the two Madras decisions referred to above but
assumed that there was jurisdiction in the Court in a proper case to do so,
and, therefore, did not express his considered opinion in view of the fact that
his two colleagues, Sulaiman and Varadachariar JJ. had agreed, though for
different reasons, in the view that the High Court had jurisdiction to implead
the Government though it was only indirectly interested in the litigation.
Sulaiman J. was inclined to take the view that there was a discretion in the
High Court to add the Government as a party. On the other hand, Varadachariar
J.
(1) (1926) I.L.R. 50 Mad. 34. (2) A.I.R. 1929
Mad 443.
(3) [1940] F.C.R. 110.
1122 was inclined to take the view that the
State did not stand on the same footing as a private third party for all
purposes. He took the view that the State as the guardian of the public
interest should not be called upon to show some pecuniary or proprietary
interest or interest in public revenue in the questions involved, to be added
as a party.
He also observed that in a case where the
State intervention was concerned, " it must be decided on broad grounds of
justice and convenience and not merely as turning on the interpretation of a
particular rule in the Civil Procedure Code." Discussing the question
whether it was a matter of discretion or of Jurisdiction in the court to make
an order adding a party, the learned Judge made the following observations :"
In my opinion, there is no case here of defect of jurisdiction in the sense in
which it is said that consent cannot cure a defect of jurisdiction. It is true
that in Moser v. Marsden (1), Lindley L. J. observed that the question was not
one of " discretion but of jurisdiction ".
But as the antithesis shows, the learned L.
J. apparently had in mind the difference between the decision of the question
of joinder on the interpretation of a rule of law and a direction given by the
lower court in the exercise of its discretion, because in the latter case the
court of appeal would generally be reluctant to interfere. It may even be
regarded as a case of excess of jurisdiction within the meaning of s. 115 of
the Civil Procedure Code, but that will not make the order void in the sense
that it may be ignored or treated as if it had never been passed." It
would thus appear that the courts in India have not treated the matter of
addition of parties as raising any question of the initial jurisdiction of the
court. It may sometimes involve a question of jurisdiction in the limited sense
in which it is used in s. 115 of the Code of Civil Procedure.
It is no use multiplying references bearing
on the construction of the relevant rule of the Code relating to addition of
parties. Each case has to be determined on its own facts, and it has to be recognized
that no decided cases have been brought to our notice which (1) [1892] 1 Ch.
487.
1123 can be said to be on all fours with the
facts and circumstances of the present case. There. ,cannot be the least doubt
that it is firmly established as a result of judicial decisions that in order
that a person may be added as a party to a suit he should have a direct
interest in the subject-matter of the litigation whether it raises questions
relating to moveable or immoveable property. In the instant case, we are not
concerned with any controversy as regards property or estate. Hence, all the
cases cited at the bar, laying down that a person who has no present interest
in the subject matter cannot be added, are cases which were concerned with
property rights. In this case, we are concerned primarily with a declaration as
regards status which directly comes under the provisions of s. 42 of the
Specific Relief Act. We are concerned, in this case, with the following
provisions of s. 42:" 42. Any person entitled to any legal character, or
to any right as to any property, may institute a suit against any person
denying. or interested to deny, his title to such character or right, and the
Court may in its discretion make therein a declaration that he is so entitled,
and, the plaintiff need not in such suit ask for any further relief." This
section recognizes the right in any person to have a declaration made in
respect of his legal character or any right to property. To such a suit for a
mere declaration, any person denying or interested to deny the existence of any
legal character or the alleged right to any property, would be a necessary
party. The plaintiff appellant chose to implead only her alleged husband, the
Prince. There is no clear averment in the plaint that the defendant had ever
denied the legal character in question, namely, the status of the plaintiff as
his wife. The substance of the plaintiff's cause of action is stated in para. 3
of the plaint. From the words used in the said para. of the plaint, it is clear
that the persons who are alleged to have known the existence of the
relationship of husband and wife between the parties would include the
respondents 1 and 2, and that the Prince had been trying to suppress the fact
of 143 1124 the marriage with the plaintiff so as to lead the members of his
family to conclude that the plaintiff is not his wife,.
The gravamen of the charge against the Prince
is that " he refuses to openly acknowledge the plaintiff as his legally
wedded wife, ", and that this conduct has cast a cloud oil the plaintiff's
status as such wife. Such a conduct on the part of the Prince, it is further
alleged, is not only injurious and detrimental to the rights of the plaintiff,
but is adversely affecting the rights of the issue of the marriage, meaning
thereby, the three daughters by the plaintiff. It is thus clear, as was
contended on behalf of respondents I and 2, that reading between the lines of
the averments aforesaid, it is suggested that not only the defendant respondent
3-but the other in embers of his family, including respondents I and 2, were
interested ill dying the plaintiffs alleged status, and that this
suit-,",as being instituted to clear the cloud cast not, only upon the
plaintiffs status as a legally wedded wife, but upon the status of the three
daughters by her. It is clear, therefore, that if the plaintiff had been less
disingenuous and had impleaded the first and the second respondents also, as
defendants in the suit, the latter could not have been discharged from the action
on the ground that they had been unnecessarily impleaded and that no cause of
action bad been disclosed against them. They would certainly have been proper
parties to the suit. This is a very important aspect of the case which has to
be kept ill view in order to determine the question whether respondents, 1 and
2 had been rightly added as defendants on their own intervention.
It is also clear on the words of the statute,
quoted above, that the grant of a declaration such as is contemplated by s. 42,
is entirely in the discretion of the court. At this stage it is convenient to
deal with the other contention raised on behalf of the appellant namely, that
in view of the unequivocal admission of the plaintiffs claim by the Prince in
his written statement and repeated as aforesaid in his counter to the
application for intervention by respondents I and 2, no serious controversy now
survives.
It is suggested 1125 that the declarations
sought in this case would be granted as a matter of course. In this connection,
our attention was called to the provisions of r. 6 of 0. 12 of the Code of
Civil Procedure, which lays down that upon such admissions as have been made by
the Prince in this case the court would give judgment for the plaintiff. These
provisions have got to be read along with r. 5 of 0. 8 of the (,ode with
particular reference to the proviso which is in these terms:" Provided
that the Court may in its discretion require any fact so admitted to be proved
otherwise than by such admission." The proviso quoted above is identical
with the proviso to s. 58 of the Indian Evidence Act, which lays down that
facts admitted need not be proved. Reading all these provisions together, it is
manifest that the court is not bound to grant the declarations prayed for even
though the facts alleged in the plaint may have been admitted. In this
connection, the following passage in Anderson's " Actions for Declaratory
Judgments ", Vol. 1, p. 340, under art. 177, is relevant:" A claim of
legal or equitable rights and denial thereof on behalf of an adverse interest
or party constitutes a ripe cause for a proceeding, seeking declaratory relief.
A declaration of rights is not proper where the defendant seeks to uphold the
plaintiff-, in such an action. The required element of adverse parties is
absent." " In others words the controversy must be between the
plaintiff and the respondent who asserts an interest adverse to the plaintiff.
In the absence of such a situation there is no justiciable controversy and the
case must be characterized as one asking for an advisory opinion, and as being
academic rather than justiciable..............." " i.e., there must
be an actual controversy of justiciable character between parties having
adverse interest." Hence, if the court, in all the circumstances of a
particular case, takes the view that it would insist upon the burden of the
issue being fully discharged, and if the, 1126 court, in pursuance of the terms
of s. 42 of the Specific Relief Act, decides, in a given case, to insist upon
clear proof of even admitted facts, the court could not be said to have
exceeded its judicial powers. That the plaintiff herself or her legal advisers
did not take the view contended for on her behalf, is shown by the fact that a
few days after the filing of the written statement of the Prince, on April 27,
Barkat Ali, the Mujtahid, who is alleged to have solemnized the marriage, was
examined in court, and he gave his statement on oath in support of the
plaintiff's claim. He also proved certain documents in corroboration of the
plaintiff's case and his own evidence.
This witness was not cross-examined on behalf
of the defendant. It was stated before us, on behalf of respondents 1 and 2,
that there were pieces of documentary evidence apart from certain alleged admissions
made by or on behalf of the plaintiff, which seriously militate against the
plaintiff's case and the statement of the witness referred to above. We need
not go into all that controversy, because we are not, at this stage, concerned
with the truth or otherwise of the plaintiffs case. At this stage we are only
concerned with the question whether in adding respondents I and 2 as defendants
in the action, the courts below have exceeded their powers. It is enough to
point out at this stage that the plaintiff did not invite the court to exercise
its powers under r. 6 of 0. 12 of the Code of Civil Procedure, and, therefore,
we are not called upon to decide whether the trial court was right in not
pronouncing judgment on mere admission. The court, when it is called upon to
make a solemn declaration of the plaintiff's alleged status as the defendant's
wife, has, naturally, to be vigilant and not to treat it as a matter of course,
as it would do in a mere money claim which is admitted by the defendant. The
adjudication of status, the declaration of which is claimed by the plaintiff,
is a more serious matter, because by its intendment and in its ultimate result
it affects not only the persons actually before the court in the suit as
originally framed, but also the plaintiff's progeny who are not parties to the
action, and the respondents 1 and 2.
1127 If the declaration of status claimed by
the plaintiff is granted by the court, naturally the three daughters by the
plaintiff would get the status of legitimate children of the Prince. If the
decision is the other way, they become branded as illegitimate. The suit
clearly is not only in the interest of the plaintiff herself but of her
children also. It is equally clear that not only the Prince is directly affected
by the declaration sought, but his whole family, including respondents I and 2
and their descendants, are also affected thereby. This, naturally leads us to a
discussion of the effect of s. 43 of the Specific Relief Act, which goes with
and is an integral part of the scheme of declaratory decrees which form the
subject-matter of Ch.
VI of the Act. That section is in these
terms:" 43. A declaration made under this Chapter is binding only oil the
parties to the suit, persons claiming through them respectively, and where any
of the parties are trustees, on the persons for whom, if in existence at the
date of the declaration, such parties would be trustees." On behalf of the
appellant it was contended by the learned Attorney-General that the declaration
of status sought in this suit by the plaintiff will be binding only upon her
and the Prince, and being a rule of' res judicata will bind only the parties to
the suit and their privies. It was further contended that respondents I and 2
are in no sense such privies. The argument proceeds thus: Section 43 lays down
a rule of res judicata in a modified form, and it was so framed as to make it
clear beyond all doubt by the use of the word " only " that a
declaration under s. 42 is binding on the parties to the suit and on persons
claiming through them respectively. If any question arises in the future after
the inheritance to the estate of the, Prince opens out, it could not be said
that the plaintiff and respondents 1 and 2 were claiming through different
persons under a conflicting title which was the core of the rule of res
judicata. In this connection, reliance was placed upon the decision of the
Judicial Committee of the Privy Council 'in the case of Syed' Ashgar Reza Khan
v. Syed Mahomed Mehdi Hossein 1128 Khan (1). That case lays down that a
decision in a former suit that the common ancestor of all the parties to the
subsequent suit was entitled to the whole of the profit of a market in dispute
in the two litigations, as against his cosharers in the zamindari in which the
market was situate, does not operate as res judicata in a subsequent dispute
between those who claim under him. In this connection, reliance was also placed
upon a decision of the Madras High Court in the case of Vythilinga Muppanar v. Vijayathammal(2),
to the same effect. Mr. Pathak, appearing on behalf of the .Prince, the third
respondent, supported the appellant by raising a further point that the words
" claiming through " mean the same thing as " claiming under in
s. 11 of the Code of Civil Procedure, laying down the rule of res judicata, and
that those words are not apt to refer to a declaration. of a more personal
status, and that they mean the same thing as pi-ivy in estate ,is understood
under the common law. He called our attention to the following passage in '
Bigelow on Estoppel', 6th Edn., at pp. 158 and 159:" In the law of
estoppel one person becomes privy to another (1) by succeeding to the position
of that other as regards the Subject of the estoppel, (2) by holding in subordination
to that other...................... But it should be noticed that the ground of
privity is property and not personal relations To make a man a privy to an
action he must have acquired an interest in the subject-matter of the, action
either by inheritance, succession, or purchase from a party subsequently to the
action, or he must hold property subordinately." He also drew our
attention to similar observations in " Casperz on Estoppel". On the
other hand, Mr. Purshottam and Sir Syed Sultan Ahmed, appearing on behalf of
respondents I and 2, respectively, contended that " claiming through
" and " claiming under " have not exactly the same significance
in law, and that the rule laid down in s. 43 of the Specific Relief Act does not
stand on the same footing as a rule of res judicata contained in s. II of the
Code of (1) (1903) L.R. 30 I.A. 71.
(2) (1882) I.L. R. 6 ivlad. 43.
1129 Civil Procedure, or estoppel by
judgment, as discussed in the works of Bigelow and (Casperz, relied upon on
behalf of the other side. On behalf of respondents I and 2 it was further
contended that the suit was really intended not to bind the Prince who has
shown no hostility to the claim, but to bind respondents 1 and 2. It was also
contended that if the court were to grant the declaration that the plaintiff is
the lawfully wedded wife of the Prince, if a controversy arises hereafter
between the plaintiff and her children on the one side and respondents I and 2
on the other, this judgment will not only be admissible in evidence in that
litigation, but will be binding upon thereon the plaintiff', because she is
privy to the judgment, and oil her children, because they will be claiming the
benefit of the declaration through her, and on respondents I and 2 because they
are admittedly the wife and son of the Prince and will be manifestly claiming
through him.
In this connection, it has to be remarked
that the discretion vested in a court to grant a merely declaratory relief as
distinguished from a judgment which is capable of being enforced by execution,
derives its utility and importance from the objects it has in view, namely to
" prevent future litigation by removing existing causes of controversy to
quiet title" and "to perpetuate testimony ", as also to avoid
multiplicity of proceedings. This practice of granting declaratory reliefs,
which originated in England in the Equity courts, has been very much extended
in America by statutory provisions. In India, the law has been codified in the
Specific Relief Act, in Ch. VI, and has, in a sense, extended the scope of the
rule by providing for declarations not only in respect of claims to property
but also in respect of disputes as regards status. From the terms of s. 42 of
the Act, it would appear that the Indian courts have not been empowered to
grant every form of declaration which may be available in America. In its very
entire, a declaratory decree does not confer any new right, but only clears Lip
mists which may have gathered round the title to property or to status or a
legal character. When a 1130 court makes a declaration in respect of a disputed
status, important rights flow from such a judicial declaration.
Hence, a declaration granted in respect of a
legal character or status in favour of a person is meant to bind not only persons
actually parties to the litigation, but also persons claiming through them as
laid down in s. 43 of the Act. It is, thus, a rule of substantive law, and is
distinct and separate from the rule of res judicata or estoppel by judgment.
The doctrine of res judicata, as it has been enunciated in a number of rules
laid down in s. 11 of the Code of Civil Procedure, covers a much wider field
than the rule laid down in s. 43 of the Specific Relief Act. For example, the
doctrine of res judicata lays particular stress upon the competence of the
court. On the other hand, s. 43 emphasizes the legal position that it is a
judgment in personam as distinguished from a judgment in rem. A judgment may be
res judicata in a subsequent litigation only if the former court was competent
to deal with the later controversy. No such considerations find a place in s.
43 of the Specific Relief Act. Again, a previous judgment may be res judicata
in a subsequent litigation between parties even though they may not have been
eo nomine parties to the previous litigation or even claiming through -them.
For example, judgment in a representative suit, or a judgment obtained by a
presumptive reversioner will bind the actual reversioner even though he may not
have been a party to it, or may not have been claiming through the parties in
the previous litigation.
When a declaratory judgment has been given,
by virtue of s. 43, it is binding not only on the persons actually parties to
the judgment but their privies also, using the term 'privy' not in its
restricted sense of privy in estate, but also privy in blood. Privity may arise
(1) by operation of law, for example, privity of contract; (2) by creation of
subordinate interest in property, for example, privity in estate as between a
landlord and a tenant, or a mortgagor and a mortgagee; and (3) by blood, for
example, privity in blood in the case of ancestor and heir. Otherwise, in some
conceivable cases, the provisions of s. 43, quoted 1131 above, would become
otiose. The contention raised on behalf of the appellant, which was strongly
supported by the third respondent through Mr. Pathak, as stated above, is that
a declaratory judgment would not bind anyone other than the party to the suit
unless it affects some property, in other words, unless the parties were privy
in estate. But such a contention would render the provisions of s. 43
aforesaid, applicable only to declarations in respect of property and not
declarations in respect of status. That could not have been the intendment of
the statutory rule laid down in s. 43. Sections 42 and 43, as indicated above,
go together, and are meant to be co-extensive in their operation. That being
so, a declaratory judgment in respect of a disputed status, will be binding not
only upon the parties actually before the court, but also upon persons claiming
through them respectively. The use of the word only' in s. 43, as rightly
contended on behalf of the appellant, was meant to emphasize that a declaration
in Ch. VI of the Specific Relief Act, is not a judgment in rem. But even though
such a declaration operates only in personam, the section proceeds further to
provide that it binds not only the parties to the suit, but also persons
claiming through them, respectively. The word I respectively' has been used with
a view to showing that the parties arrayed on either side, are really claiming
adversely to one another, so far as the declaration is concerned. This is
another indication of the sound rule that the court, in a particular case where
it has reasons to believe that there is no real conflict, may, in exercise of a
judicial discretion, refuse to grant the declaration asked for oblique reasons.
As a result of these considerations, we have
arrived at the following conclusions:(1) That the question of addition of
parties under r. 10 of
0. I of the Code of Civil Procedure, is
generally not one of initial jurisdiction of the court, but of a judicial
discretion which has to be exercised in view. of all the facts and
circumstances of a particular case; but in some cases, it may raise
controversies as to the power of the court, in contra distinction to its
inherent 144 1132 jurisdiction, or, in other words, of jurisdiction in the
limited sense in which it is 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 subject-matter 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 ss. 42 and 43 of the Specific Relief Act ;
(5)In cases covered by those statutory
provisions the court is not bound to grant the declaration prayed for, on a
mere admission of the claim by the defendant, if the court has reasons to
insist upon a clear proof apart from the admission;
(6)The result of a declaratory decree on the
question of status such as in controversy in the instant case affects not only
the parties actually before the court but generations to come, and, in view of
that consideration, the rule of I present interest' as evolved by case law
relating to disputes about property does not apply with full force;
and (7)The rule laid down in s. 43 of the
Specific Relief Act is not exactly a rule of res judicata. It is narrower in
one sense and wider in another.
Applying the propositions enunciated above to
the facts of the instant case, we have come to the conclusion that the courts
below did not exceed their power in directing the addition of respondents I and
2 as parties-defendants in the action. Nor can it be said that the exercise of
the discretion was not sound. Furthermore, this case comes before us by special
leave and we do not consider that it is a fit case where we should interfere
with the exercise of discretion by the courts below. The appeal is,
accordingly, 1133 dismissed. As regards the question of costs, we direct that
it will abide the ultimate result of the litigation and will be disposed of by
the trial court.
IMAM J.-I regret I cannot agree with the
opinion of my learned brethren expressed in the judgment just delivered.
The appellant in her plaint had asked for a
declaration that she was a legally wedded wife of respondent 3 and that she was
also entitled to receive from him Kharch-e-Pandan at the rate of Rs. 2,000 per
month. This respondent filed his written statement in which he unequivocally
admitted that the appellant was married to him and that she was also entitled
to the Kharch-e-Pandan as claimed in the plaint.
He further admitted that the appellant bore
him three issues out of the marriage. The appellant sought no relief or any
declaration against respondents 1 and 2 as, indeed, she could not have, because
she had no cause of action against them. There is nothing in the pleadings of
the appellant and respondent 3 which discloses that respondents I and 2 have
any cause of action against the appellant. Respondents 1 and 2, however, filed
an application under 0. 1, r. 10(2), of the Code of Civil Procedure before the
Judge of the City Civil Court, Hyderabad, praying that they should be added as
parties to the suit filed by the appellant. The Judge of the City Civil Court
allowed the application and his decision was affirmed by the High Court. The
question for decision in this appeal is whether the Judge of the City Civil
Court was justified in adding respondents I and 2 as parties to the suit and
whether the decision of the High Court upholding his order should be affirmed.
The provisions of 0. 1, r. 1, state as to who
may be joined as plaintiffs in a suit and 0. 1, r. 3, states who may be joined
as defendants. The parties who are to be joined as plaintiffs and defendants in
a suit are persons in whom and against whom any right to relief in respect of
or arising out of the same act or transaction or series of acts or transactions
is alleged to exist, whether jointly, severally or in the alternative, where,
if such persons were parties in separate suits, any 1134 common question of law
or fact would arise. Independent of this, a court has jurisdiction under 0.1,
r. 10(1), to substitute or add as plaintiff any person whom it considers
necessary for the determination of the real matters in dispute. Under 0. 1, r.
10(2), the court has the power to strike off a party who has been improperly
joined, whether as plaintiff or defendant, and to join, as plaintiff or
defendant, any person who ought to have been joined, or whose presence before
the court may be necessary in order to enable it effectually and completely to
adjudicate upon and settle all the questions involved in the suit. It is quite
obvious from the contents of the plaint and the written statement of respondent
3 that there was no occasion for the appellant to have joined respondents I and
2 as defendants in the suit. There remains, then, to consider whether the
circumstances appearing in this case justified the Judge of the City Civil
Court to add respondents 1 and 2 as defendants under the provisions of 0. 1, r.
10(2).
Respondents 1 and 2 in their application
under 0. 1, r. 10(2), of the Code of Civil Procedure, in essence, relied upon
the five following grounds for their plea that they should be added as
defendants in the suit:
(1)That respondent I was the lawful and
legally wedded wife of respondent 3, (2) That respondent 2 was the son of
respondent 3, (3) That respondents 1 and 2 should be joined as parties to the
suit because the question to be adjudicated upon would seriously affect their
rights and interest in the estate of respondent 3, (4)That by adding
respondents 1 and 2 as parties neither a new cause of action would be
introduced nor would the nature of the suit be altered, (5)That the issue to be
tried in the suit, after respondents I and 2 were added as parties, would still
be the same as the case made by the appellant was that respondent 3 was
interested in denying the appellant's marriage to respondent 3-a fact which
respondents I and 2 were equally interested in denying.
The first two grounds afford no justification
for respondents I and 2 being added as parties to the suit, where 1135 the only
question to be decided is whether the appellant is married to respondent 3 and
whether he had contracted to pay to the appellant Rs. 2,000 a month as
Kharch-e-pandan. Even if the appellant successfully proved that she was married
to respondent 3, who had contracted to pay her Rs. 2,000 per month as
Kharch-e-pandan, the status and the rights of respondents I and 2 as wife and
son of respondent 3 would remain unaffected. A Mohammedan is entitled to marry
more than once and have wives to the number four at one and the same time. This
is his right under his personal law and no one can question the exercise of
this right by him. In the suit between the appellant and respondent 3, the
question as to whether the appellant was married to respondent 3 was a matter
entirely personal to the appellant and respondent 3.
The appellant claimed that she was lawfully
married to respondent 3. It was open to respondent 3 to either deny or admit
her claim. In fact, respondent 3 had admitted the claim of the appellant that
she was married to him. It is not open to anyone else in the present litigation
to say that he has falsely made such an admission. It is true that respondents
1 and 2 have alleged collusion between the appellant and respondent 3. No
positive facts are asserted in support of this. The suggestion is based merely
on suspicion. Unless the court is justified in adding respondents 1 and 2 as
defendants in the suit the suggestion made by them that there is collusion
between the appellant and respondent 3 should be ignored by the court on the
simple ground that respondents 1 and 2 have no locus standi to make any such
representation in the present case.
The 3rd, 4th and 5th grounds may be
considered together as they are inter-connected. Grounds 4 and 5 suggest that
there would be neither a new cause of action introduced nor would the nature of
the suit be altered and the issue to be tried in the suit would still be the
same even if respondents I and 2 were added as parties. The only issue in the
suit filed by the appellant is whether she was married to respondent 3 and
whether there was a contract by the latter to pay 1136 her Rs. 2,000 per month
as Kharch-e-pandan. If respondents I and 2 are added as parties, questions
relating to right of inheritance in the estate of respondent 3 would arise for
determination in addition to the only issue stated above in the case. The main
ground, upon which respondents 1 and 2 claim that they should be added as
parties to the suit, is to be found in the 3rd ground which, in substance, is
that if the appellant is declared to be lawfully wedded to respondent 3, then
the rights and interests of respondents I and 2 in the estate of respondent 3
would be affected. In other words, in the estate of respondent 3, on his death,
in addition to respondents 1 and 2, the appellant and her three children by him
would have rights of inheritance.
Consequently, the extent of inheritance of respondents
I and 2 in the estate of respondent 3 would be considerably diminished. It was
urged that if the appellant is given the declaration, which she seeks, the
judgment of the court would be in the exercise of matrimonial jurisdiction and
it would be a judgment in rem as stated in s. 41 of the Indian Evidence Act.
Such a declaration would also be binding on respondents 1 and 2 by virtue of
the provisions of s. 43 of the Specific Relief Act. The appellant asked for a
declaration under s. 42 of the Specific Relief Act. This section permitted a
person who claimed to be entitled to any legal character, or to any right to
property, to institute a suit against any person denying, or interested to
deny, such character or right. Respondents 1 and 2 was interested in denying
the appellant's status as a wife and the status of her three children as the
legitimate children of respondent
3. A declaration in her favour would be
binding on respondents I and 2 and they would never be in a position to
disprove the appellant's marriage to respondent 3. This was an impossible
situation where the declaration had been obtained from a court as the result of
collusion between the appellant and respondent 3.
This submission presupposes that respondents
I and 2 would survive respondent 3. During the lifetime of respondent 3 neither
the appellant nor her children on 1137 the one hand nor respondents 1 and 2 on
the other have any right,-, whatsoever in his estate under the Mohammedan law.
During the lifetime of respondent 3 respondents
I and 2 would have the right to be maintained by him and, if the appellant is
also his wife, then she and her children would also have the right to be
maintained by him. The appellant and respondent 1 would also have rights
arising out of a contract, if any, between them and respondent 3. None of these
rights, however, are rights or interests in the estate of respondent 3. The
submission also presupposes that on the death of respondent 3 he would have
left behind some estate to be inherited by his heirs. These submissions are
entirely speculative and afford no basis for the impleading of respondents 1
and 2 as parties to the appellant's suit.
It was said, however, that the right to
inherit is a present right in respondents 1 and 2 and if the appellant is
declared to be the wife of respondent 3, then that right to inheritance is
affected. This contention is erroneous and there is no legal basis to support
it. If the appellant is declared to be the wife of respondent 3 such a
declaration could not affect the right to inherit on the part of respondents I
and 2 in the estate of respondent 3, assuming that respondent 3 on his death
left an estate to be inherited and that the appellant and her children and
respondents I and 2 survived him. The extent of the inheritance of each one of
these may thus become less but so far as that is concerned it cannot be
predicated during the lifetime of respondent 3 as to what would be the extent
of the inheritance of his heirs. Under the Mohammedan law, by which the parties
are governed, respondent 3 could yet validly marry two other women and have
children from them, in which case, the inheritance, if any, could not be to the
same extent if respondent 3 died leaving only respondents I and 2 as his heirs.
The entire question raised by respondents I and 2 is based on the supposition
that they have rights in the estate of respondent 3. Under the Mohammedan law
they have no such rights. It is only in the event of their surviving respondent
3 that their rights will vest in his estate and the extent of 1138 their
inheritance will be calculated on the number of persons entitled to inherit his
estate at the time of his death.
It was urged, however, that unless
respondents 1 and 2 are now given an opportunity to show that there was no
valid marriage between the appellant and respondent 3, a declaration that there
was a marriage between these two persons would be binding on them by virtue of
the provisions of s. 43 of the Specific Relief Act. If, therefore, on the death
of respondent 3 a question arose as to who were entitled to inherit his estate,
respondents I and 2 would not be able to question the rights of the appellant
and her children and they would be adversely affected by the declaration. It is
somewhat doubtful, having regard to the terms of s. 43, that such a declaration
in the present suit would be binding on respondents I and 2 as they would not
be claiming their right to inheritance through the appellant and respondent 3
respectively. Assuming, however, that such a declaration would be binding on
them, that would be no justification for their being impleaded in the present
litigation where the issue is not one of inheritance but one of marriage
between the appellant and respondent 3. If the submission has any substance it might
as well be said by any one that he should be impleaded as a party to a suit and
should be allowed to contest the suit, although there was no cause of action
against him, because the decree in the suit would bind him on the ground of res
judicata.
It is true that in a suit under s. 42 of the
Specific Relief Act it is discretionary with the court to make or not to make
the declaration asked for. The exercise of that discretion, however, has to be
judicial. In the present case there does not appear to be any legal impediment
in the way of the court refusing to make the declaration asked for since
respondent 3 had acknowledged the marriage and had admitted the claim for Rs.
2,000 per month as Kharch-epandan. The appellant has not asked for any sum of
money to be decreed in her favour. There is no cause of action now left to the
appellant which can be the basis for the present suit. The appellant could rely
upon the 1139 acknowledgement which raises a presumption under the Mohammedan
law that she is married to respondent 3. There appears to be no good ground for
adding respondents I and 2 as parties to the present suit. If hereafter on the
happening of a certain event and the existence of certain circumstance any
question arose whether the appellant was married to respondent 3, then those
who were interested in disproving the marriage would be in a position to do so
and rebut the presumption arising from the acknowledgement.
Under O. 1, r. 10, of the Code of Civil
Procedure the court has the power to pass orders regarding the adding of
parties or striking off the name of a party. Whether the exercise of this power
is a matter of jurisdiction or of discretion appears to have been the subject
of difference of opinion in the courts of law here and in England. Whichever
view may be correct it is. patent that resort to the exercise of such power
could only be had if the court is satisfied that it is necessary to make an
order under 0. 1, r. 10, in order to effectually and completely adjudicate upon
and settle all questions involved in the suit. The court ought not to compel a
plaintiff to add a party to the suit where on the face of the plaint the
plaintiff has no cause of action against him. If a party is added by the court
without whose -presence all questions involved in the suit could be effectually
and completely adjudicated upon, then the exercise of the power is improper and
even if it be a matter of discretion such an order should not be allowed to
stand when that order is questioned in a superior court. The plaintiff is
entitled to choose as defendants against whom he has a cause of action and he
should not be burdened with the task of meeting a party against whom he has no
cause of action. It was, however, suggested that on the face of the plaint not
only respondent 3 was interested in denying his marriage with the appellant but
a legitimate inference could be drawn from the contents of the pleadings that
respondents 1 and 2 were also interested in denying the marriage. No allegation
made in the pleadings even remotely suggests that respondents I and 2 were
interested to deny the alleged 145 1140 marriage of the appellant to respondent
3 or were denying the same. Under s. 42 of the Specific Relief Act a suit may
be instituted against any person denying or interested to deny the plaintiffs
legal character or right to any property. The plaint does not suggest that
respondents 1 and 2 were denying the appellant's status as wife of respondent
3. Such an issue was raised by the appellant against respondent 3 only. In law,
it cannot be said that respondents 1 and 2 are interested to deny the status of
the appellant as the wife of respondent 3 because the status of respondent I as
wife and respondent 2 as the son of respondent 3 is not in the least affected
even if the appellant is declared to be the wife of respondent 3, as under the
Mohammedan law respondent 3 is entitled to have both the appellant and
respondent 1 as his wives and .children through them. The true legal position
in the present suit between the appellant and respondent 3 is that respondents
I and 2 have no locus standi in such a suit.
There is no danger of multiplicity of suits
during the lifetime of respondent 3. The suggestion that the present suit would
lead to multiplicity of suits is founded on an assumption which no court of law
can assume. It cannot be assumed that respondent 3 would die first. It may well
be that he may survive both respondents I and 2, in which case, no question of
any suit coming into existence at their instance would arise. If the order
allowing respondents 1 and 2 to be added as parties in a suit of the present
nature is allowed to stand it will open the way to a wider exercise of powers
under 0. 1, r. 10, and in a manner which was not contemplated by the Code of
Civil Procedure, or s. 42 of the Specific Relief Act or permissible under the
Mohammedan law.
I would, accordingly, allow the appeal as
both the courts below were in error in supposing that this was a case in which
the provisions of 0. 1, r. 10, applied and would set aside the orders of the
courts below. The appellant is entitled to her costs throughout.
BY COURT: The appeal is dismissed. Costs to
abide the result of litigation in the trial court.
Appeal dismissed.
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