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Punjab-Haryana High Court
Jaswinder Kaur vs Avtar Singh And Ors. on 29 August, 2000
Equivalent citations: II (2001) DMC 357
Author: R.L. Anand
Bench: R Anand

JUDGMENT

R.L. Anand, J

1. This is a civil revision and has been directed against the order dated 16.2.2000, passed by the Additional District Judge, Ludhiana who allowed the application under Order 1 Rule 10, C.P.C. filed by Smt. Ranjit Kaur, the second wife of Shri Avtar Singh.

2. Some facts can be noticed in the following manner. Shri Avtar Singh was the husband of Smt. Jaswinder Kaur, the present petitioner. He filed a petition under Section 13 of the Hindu Marriage Act against her on 16.4.1988. Ex parte decree was passed in favour of Shri Avtar Singh on 18.8.1988. Smt. Jaswinder Kaur-petitioner filed an application under Order 9 Rule 13, C.P.C. on 2.6.1999 for setting aside the ex parte decree. During the pendency of the application, Smt. Ranjit Kaur, the second wife of Shri Avtar Singh, filed an application under Order 1 Rule 10, C.P.C. for impleading her as a necessary and proper party. This application was allowed vide the impugned order dated 16.2.2000 for the reasons given in paras 5 and 6 of the order which may be read as under :

“5. Submission of the learned Counsel for Jaswinder Kaur is that Ranjit Kaur was not party to the petition under Section 13 of the Hindu Marriage Act and as such she has no direct or substantial interest in the proceedings for setting aside the judgment and decree. She has nothing to do with the proceedings regarding setting aside judgment and decree and that she is not necessary party to proceedings. On the other hand, learned Counsel for the applicant argued that she is a necessary party as she was married after the time for filing the appeal against judgment and decree had elapsed and that she is to watch her interest as she is a legally wedded wife of Avtar Singh.

6. I have given my thoughtful consideration to the rival arguments. Any person, not a party to the proceedings, may be permitted to intervene and show that the allegations made in the proceedings are contrary to facts. In this case Ranjit Kaur has filed affidavit that her marriage was solemnised with Avtar Singh on 8.11.1998. Photographs regarding her marriage with Avtar Singh have also been placed on the file. Prima facie marriage has been solemnised after the expiry of the period of limitation for filing the appeal against the judgment and decree. If ex parte decree is set aside in the absence of the applicant, the fact, so far as her marriage with Avtar Singh is concerned, would be disastrous inasmuch as her own marriage would immediately become questionable. Once Ranjit Kaur has married Avtar Singh, she became vitally interested in the proceedings. In these circumstances, she is a necessary party to the proceedings. In this view of the matter, I am fortified by the observations of the Hon’ble Judge in the case of Kiran Devi v. Kartar Chand and Anr., 1995 (3) RRR 456. Accordingly, application is accepted. Ranjit Kaur is ordered to be arrayed as respondent No. 2 in the application for setting aside the ex parte judgment and decree.”

3. Aggrieved by the impugned order, the present revision has been filed by Smt. Jaswinder Kaur.

Order 1 Rule 10, C.P.C. lays down as follows :

“Suit in name of wrong plaintiff-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.”

4. The reading of the above would show that a person is entitled to become a party to the proceedings if he proves that he is necessary or proper party or his presence is necessary for the adjudication of the case. In the application under Order 9 Rule 13, C.P.C. the scope of the Court which passed the decree dated 18.8.1998 is limited to find out whether there is any sufficient cause for setting aside the ex parte decree or not. The contest in these circumstances would be between Avtar Singh and Jaswinder Kaur. The presence of Smt. Ranjit Kaur is neither necessary nor proper, though she has married to Avtar Singh after the dissolution of the marriage vide decree dated 18.8.1998.

5. In these circumstances, the impugned order dated 16.2.2000 is hereby set aside. It is made clear that in case the Court decides and allows the application under Order 9 Rule 13, C.P.C. filed by Smt. Jaswinder Kaur, certainly, Smt. Ranjit Kaur, will be entitled to file fresh application under Order 1 Rule 10, C.P.C. because she has married herself with Avtar Singh. Her rights will be involved and in such an eventuality the application under Order 1 Rule 10, C.P.C. filed by Smt. Ranjit Kaur shall be allowed and she will be permitted to contest the main petition filed by Shri Avtar Singh.

6. This order also dismisses the application under Section 24 of the Hindu Marriage Act filed by Smt. Jaswinder Kaur vide which she has claimed litigation expenses against her husband Shri Avtar Singh.

7. The present petition stands disposed of.


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