CR No.692 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. CR No.692 of 2010 (O&M) Decided on Sept. 27,2010. Om Parkash -- Petitioner vs. Jitender Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.C.B.Kaushik,Advocate,for the petitioner Mr.N.S.Sekhawat,Advocate,for respondent Nos.1 and 2. Rakesh Kumar Jain, J, (Oral) This revision petition is directed against order dated 15.12.2009 passed by Civil Judge (Senior Division), Mohindergarh by which an application filed by the petitioner under Order 1 Rule 10 of Code of Civil Procedure, 1908 (for short,'CPC'), for impleading the petitioner as defendant No.3 in the suit, has been dismissed. Learned counsel for the petitioner has submitted that one Gadsa Ram was owner of the property in dispute measuring 16 kanals 0 marla which was mortgaged by him in favour of Sarwan Devi for a sum of Rs.8000/- vide mortgage deed No. 428 dated 3.6.1986. The said Sarwan Devi had three sons, namely, Darshan Lal, Panna Lal and Om Parkash (petitioner). Darshan Lal and Panna Lal filed a Civil Suit No. 613 of 1995 against Swaran Devi alone to the effect that they are owners in possession of the shop with its first floor alongwith two rooms constructed thereon, by virtue of family settlement of 1996. In the alternative, they had set up a Will alleged to have been executed by Swaran Devi and an alleged family settlement of 1988. In the said suit, the petitioner filed an application under Order 1 Rule 10 of CPC which was allowed and he was ultimately CR No.692 of 2010 (O&M) 2 got impleaded and arrayed as defendant No.2. The trial Court decreed the said suit declaring defendant No.2 to be the owner of half shop on the Northern side as per the site plan mark A and defendant No.2 was found in possession over the shop situated on the Southern side and the two Chobaras constructed on the first floor. The decree is alleged to have been passed on the basis of a family settlement of 1988 and settlement of 1996 and the Will was not believed. However, no observation was made regarding Will as it was neither under challenge nor any issue was framed about its genuineness. Learned counsel for the petitioner has submitted that the judgment and decree of the trial Court dated 14.12.2005 passed in Civil Suit No.613 of 1995 is under challenge by way of an appeal. In the meantime, Jitender Singh and Darmender , minor sons of Bala Ram son of Gadsa Ram filed the present suit for declaration to the effect that they are owners in possession of half share of the land in dispute, namely the land which was mortgaged by Gadsa Ram in favour of Sarwan Devi and have made payment of mortgaged amount to Sarwan Devi and the entries in the revenue record, showing Sarwan Devi as mortgagee, is illegal and liable to be corrected. In this suit, the plaintiffs had impleaded only Panna Lal and Darshan Lal sons of Sarwan Devi as defendants. The petitioner had filed an application under Order 1 Rule 10 of CPC to become a party on the ground that he is one of the sons of Sarwan Devi who died intestate insofar as her mortgagee rights are concerned and after her death, he had also succeeded to the mortgagee rights. It is also submitted that mortgage money was paid by him. The learned trial Court dismissed the application on the ground that since Sarwan Devi had executed a Will vide Deed No. 67 dated 8.11.1996 in favour of her sons, namely Darshan Lal and Panna Lal regarding her moveable and immoveable properties, therefore, the present applicant is not entitled to be impleaded as a party in the suit. Learned counsel for the petitioner has vehemently argued that presence of the petitioner is necessary in the suit as the mortgage deed in question was executed in favour of Sarwan Devi and the question as to whether the amount of mortgage money has been paid or not as alleged CR No.692 of 2010 (O&M) 3 by the plaintiff, which is going to effect his mortgagee right, which he has acquired after the death of her mother by way of natural succession . Insofar as the Will is concerned, that has also to be examined by the Court. On the other hand, learned counsel for the respondents has submitted that the suit is at the stage of evidence, is fixed for 30.9.2010 and if the petitioner is impleaded as a party, the whole case will be reopened because he would ask for filing of his written statement and also would lead his evidence. I have heard learned counsel for the parties and perused the record with their assistance. The facts are not much in dispute, namely the suit property was owned by the predecessor-in-interest of the plaintiff who had mortgaged the same to the predecessor-in-interest of the defendants and the petitioner. There is a previous litigation between the parties as both the sons of Sarwan Devi had filed a suit against her for the purpose of claiming her property on the basis of a family settlement without impleading the third son i.e the petitioner. Order 1 Rule 10 of CPC gives powers to the Court to add or strike off the name of any of the parties to the suit if it is satisfied from the facts and circumstances of the case that he is neither a necessary nor proper party. After hearing the learned counsel for the parties, I am of the view that the petitioner is a necessary party in the present litigation as the case of the plaintiffs is that they have already made the payment of the mortgage money to Sarwan Devi but the suit has been filed after her death. It is yet to be seen whether the amount has been paid or not. In the absence of the petitioner, who has a right in the mortgage property, if both the defendants collude with the plaintiffs, then it would definitely effect his right. Thus, in view of the above, the present revision petition is allowed and the impugned order is set aside. The parties shall bear their own costs. Sept 27,2010 (Rakesh Kumar Jain) RR Judge