The distinction between a necessary party and a proper party is that a necessary party is one who ought to have been joined, whether as plaintiff or defendant, and a proper party is one whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

ORDER :- This is a plaintiffs application in revision against the order of the learned Subordinate Judge, Theog dated 13-10-1952 whereby the plaintiffs were directed to file an amended plaint impleading the State of Himachal Pradesh as a defendant. This order was passed after the disposal of the preliminary issue whether the said State was a necessary party to the suit. The Court held that the State was a necessary party.

2. There are two preliminary objections raised by the learned counsel for the defendants-respondents. The first is that the plaintiffs are estopped from filing their revision because of an application which they filed on 23-10-1952 for extension of time to file the amended plaint in accordance with the aforesaid finding. There is no doubt that extension of time was in fact prayed for by the plaintiffs, but I do not think that by reason merely of having put in such an application the plaintiffs would be estopped from coming up in revision against the order in question. The learned counsel for the respondents cited - Ramaswami Chettiar v. Chindambaram Chettiar, AIR 1927 Mad 1009 (2) (A); - Sohan Lal v. Dhan Mal Ishar Das, AIR 1928 Lah 813 (2) (B), - Bahadur v. Mohammad Din, AIR 1934 Lah 979 (C). All these were cases where a party sought to challenge an order after having accepted a certain benefit on condition of which the order was passed. In the present case no such benefit was accepted by the plaintiffs-petitioners. The mere fact that the plaintiffs asked for an. extension of time could not be said to be tantamount to their having accepted any benefit. It appears that under the order in question the Court ordered the plaintiffs to pay certain costs; but no time for payment of costs had been fixed. Moreover, if the said order remains the costs will certainly be payable. In the result therefore I disallow the first preliminary objection and hold that the plaintiffs are not estopped from filing the present revision.

3. The next preliminary objection taken by the learned counsel for the respondents was that no question of jurisdiction is involved and therefore a revision petition is incompetent. If however the trial Court was wrong in holding that the State of Himachal Pradesh was a necessary party, it will be deemed to have assumed jurisdiction qua the party ordered to be impleaded which it otherwise did not possess. As I shall presently show, the finding of the trial Court was erroneous. That being so, this was a case of the trial Court seeking to exercise jurisdiction not vested in it. The revision is therefore competent.

4. Coming to the merits of the issue, it appears that the plaintiffs filed the suit treating the defendants as trespassers. Their case was that the property in suit originally belonged to one Magni and that on his death his widow Mt. Khanki succeeded to it with life interest of a Hindu widow. Mt. Khanki is said to have died in or about 1944 and the present suit was filed in January 1950. The plaint allegation was that since the death of Mt. Khanki the defendants had been in wrongful possession. It was also pleaded that in case the defendants possession was on foot of any alienation by Mt. Khanki, the possession would be illegal since she had no right to make the alienation. The plaintiffs set up their title to the property as reversioners to the last male-holder. The defendants on the other hand contended that the property was taken by escheat by the Balsan State and thereafter granted to them by that State on receipt of certain nazrana. It is not necessary for disposal of the present issue to consider other pleas taken in defence. It may incidentally be stated further that one of the points taken up in the written statement was that the plaintiffs were aware of this escheat. The question is whether on these pleadings the State of Himachal Pradesh was, or was not, a necessary party.

5. I do not wish to express any final opinion on the question of whether the plaintiffs were, or were not, aware o

Click Here to Read the rest of this document