Point of Law: Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it, provided that nothing in this Section shall apply to non joinder of a necessary party.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 09.09.2021, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in CMA Registration No.279 of 2021, in terms whereof, an application filed under Order 1, Rule 10 of the Civil Procedure Code by the respondent for impleading the present petitioner as defendant No.2 in the Civil Suit filed by the present respondent has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are that the respondent/plaintiff (hereinafter to be referred as the ‘plaintiff’) filed a suit for declaration that he was owner in possession of the suit property and the mutation attested in favour of Surinder Pal on the basis of a Will executed on 19.05.2003 by late father of the parties was bad in law, as Will dated 19.05.2003 was not the last Will of their late father and the same was superseded by another Will of their late father which was executed on 03.04.2008. A perusal of the memo of parties, as it finds mentioned in the Civil Suit, demonstrates that Surinder Pal son of Shri Durga Singh, resident of Village Mandu, Mauja Saproh, Tehsil Nadaun, District Hamirpur, H.P. was impleaded as defendant through his General Power of Attorney Smt. Aasha Devi.

3. After her service in the written statement which was filed by Aasha Devi, copy whereof is on record as Annexure P2, it was mentioned therein that the suit was not maintainable against the wife of Surinder Pal, who was residing abroad and the filing of the suit through the wife of Surinder Pal, who had no authority to appear on behalf of Surinder Pal, as she was not authorized by Surinder Pal by way of any document or execution of Attorney to represent her, was bad in law. The Civil Suit was filed in the year 2012.

4. The Court stands informed that after the exchange of pleadings, issues were framed and even the evidence of the parties was recorded. Thereafter, the plaintiff filed an application under Order 23, Rule 1 (3) of the Civil Procedure Code, seeking leave of the Court to withdraw the suit with liberty to file a fresh suit on the same cause, on the ground that there was a formal defect in the plaint. This application was, however, rejected by the learned Trial Court and the order passed by the learned Court below was upheld in CMPMO No.161 of 2018, titled as Joginder Singh Versus Surinder Pal, decided on 29.09.2020.

5. Thereafter, an application was filed under Order 1, Rule 10 of the Civil Procedure Code by the plaintiff to implead Surinder Pal son of Shri Durga Singh, resident of Village Mandu, Mauja Saproh, Tehsil Nadaum, District Hamirpur, H.P. as defendant No.2, in which it was averred that the plaintiff had filed a suit for declaration that he and proposed defendant were cosharers in joint possession of the suit land and that deceased Durga Singh, predecessor-in-interest of the parties had executed a Will on 19.05.2023, which was replaced by Will dated 03.04.2008. The plaintiff had filed an application under Order 23, Rule 1(3) of the Civil Procedure Code in the Civil Suit for withdrawal of the same which was dismissed and in the petition preferred before the High Court, the Court directed the plaintiff that if the plaintiff intended to file any application for impleadment then the same be decided by the learned Court as per law. Hence, the application was being filed for impleadment of Shri Surinder Pal as defendant No.2 as he was a very clever person and serving abroad, who used to come to his native place occasionally and serving whom was extremely tough, because of which he was earlier impleaded as a party defendant through his wife. It was further mentioned in the application that as on account of the act and conduct of the proposed defendant, the applicant was unable to serve him and implead him as a party, therefore, defendant No.2 was now being impleaded as a party as he was a nec