judgement:
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, section 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, section 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 Court instituted 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, the 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 peti tioners 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.
dant responaent '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 section 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 unravelling the mysteries of the litigation, and that there was force in the contention put forward on behalf of the interveners that under section 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 section 115 of the Code of Civil Procedure, to revise the aforesaid order of the learned trial judge.
The High Court, in a wellconsidered 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 foradding parties.
The Court noticed the argument under section 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 defendantsrespondents 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 Princerespondents 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 0. 1 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 vs Marsden (1) and McCheane vs Gyles (No. 2) (2).
In India, this view is represented by the decision in the case of Sri Mahant Prayaga Doss Jee Varyu vs 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 section A. vs Bank of England (4).
In India, the decisions of the Madras High Court, in the cases of Vydianadayyan vs Sitaramayyan (5) and Secy. of State vs 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 vs 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 vs Krupp(7) and Apollinaris Company vs 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 vs Marsden (1) is clearly an authority for the proposition that the court has jurisdiction to add as a party defendant only a person (1) (2) (3) Mad.
(4) [195O] 2 All E. R. 605.
(5) Mad.
(6) A. I. R. (7) .
(8) 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 commer cial 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 vs 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 subject matter 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) (2) Mad.
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 vs The Board of Commissioners for Hindu Religious Enclowmentg, Madras (1) and Secy.
of State vs 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 vs 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) Mad. 34.
(2) A.I.R. 1929 Mad 443.
(3) 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 vs 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 section 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 section 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) 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 subjectmatter cannot be added, are cases which were con cerned with property rights.
In this case, we are concerned primarily with a declaration as regards status which directly comes under the provisions of section 42 of the Specific Relief Act.
We are concerned, in this case, with the following provisions of section 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 gravamenofthechargeagaiiistthePrince 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 defendantrespondent 3 but the other inembers of his family, including respondents I and 2, were interested ill deying the plaintiff 's 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 respondonts, 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 section 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 discrettion require any fact so admitted to be proved otherwise than by such admission.
" The proviso quoted above is identical with the proviso to section 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 article 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 parti cular 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 section 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 con troversy, 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 plain tiff '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 section 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 section 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 vs 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 co sharers 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 vs 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 section 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 sub ordinately.
" 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 section 43 of the Specific Relief Act does not stand on the same footing as a rule of res judicata contained in section II of the Code of (1) (1903) L.R. 30 I.A. 71.
(2) 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 section 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 section 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 section 11 of the Code of Civil Procedure, covers a much wider field than the rule laid down in section 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, section 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 section 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 section 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 section 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 section 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 section 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 section 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 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 section 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 sections 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 section 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 J@dge 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 res pondents 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 respon dents 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 section 41 of the Indian Evidence Act.
Such a declaration would also be binding on respondents 1 and 2 by virtue of the provisions of section 43 of the Specific Relief Act.
The appellant asked for a declaration under section 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 res pondents 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 section 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 section 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 section 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 e pandan.
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 section 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 section 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.

summary/full:
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 section 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 section 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 section 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.


judgement:
N: Criminal appeal No. 383 of 1991.
From the Judgment and Order dated 17.7.1990 of the Orissa High Court in Crl.
Rev. No. 382 of 1986.
Janaranjan Das for the Appellants.
A.K. Panda for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This appeal by special leave is directed against the judgment and order dated July 17, 1990 passed by the High Court of Orissa in Criminal Revision No. 382 of 1986 dismissing the revision and affirming the concurrent findings of the courts below.
The prosecution case in short is that on 19th March, 1983 at about 7.p.m.
while the victim girl Srimanthini Samal (P.W. 2) was going to the house of Rama Samal, for study, the appellant Gagan informed her that the other appellant Prafulla and others had tied her tutor Rabi Babu in a nearby mango grove and her father was present there.
Having believed the version of the appellant Gagan, her agnatic uncle, she accompanied him and ultimately the appellants forcibly took her to a lonely house in hills where she was made to sit on a chair and the appellant Gagan forcibly thrushed in her mouth a liquor bottle and she was made to drink the liquor.
Thereafter both the appellants after having undressed her committed sexual assault on her.
Then she was brought to expression highway from where she was bodily lifted to a truck standing there and left her in the truck.
While the said truck was unloading materials near village Kurujanga, the victim girl stealthily left the truck and concealed her presence near a fence.
Subsequently, one Purusottam Mohanty rescued her and brought her to his house and then she was left to the house of one Niranjan Rout (P.W. 8), who was distantly related to her and took shelter till her father took her back on being 842 informed.
On the information lodged by her father (P.W. 1) in the police station of Badachana a case under sections 363 and 376 read with section 34 of the I.P.C. was registered against the accused appellants and after investigation the I.O. sent the victim girl as well as the appellants for medical examination and after completion of the investigation a charge sheet was submitted against the appellants to stand their trial.
The pleas of the appellants were a total denial of the prosecution case.
The appellant Prafulla took the plea the there was a marriage proposal of the victim girl with him but when it was disclosed that she had illicit relationship with her tutor Rabi, he refused to marry her for which this false case was foisted against him.
The plea of the other appellant Gagan as suggested to the informant, was that due to his previous enmity he was falsely implicated with the alleged crime.
The appellants were committed to the Court of Sessions.
The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas, and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of Section 114(A) of the Evidence Act, and convicted them under section 376(2)(g) I.P.C. and sentenced each of the accused appellants to rigorous imprisonment for three years considering the young age of the appellants.
The Assistant Sessions Judge, however, acquitted the appellants from the charge under section 366 I.P.C. as the victim girl was more than 16 years of age at the time of occurrence.
Against this judgment and order of conviction the appellants filed an appeal being Criminal Appeal No. 153 of 1984 in the Court of First Additional Sessions Judge, Cuttack.
The Additional Sessions Judge considered the pleas of the appellants as well as duly scrutinized and appraised the evidences on record and found that the accused appellants committed rape on the victim girl without her consent and affirmed the conviction and sentence imposed by the Trial Court dismissing the appeal.
The appellants thereafter filed a Revision Case being Criminal Revision No. 382 of 1986 in the High Court of Orissa at Cuttack against the said judgment and order passed by the First Additional Sessions Judge, Cuttack.
The High Court duly considered and appraised the evidences of all the 9 P. Ws. including the deposition of the victim girl Srimanthni Samal (P.W. 2), the evidence of her father (P.W. 1) as well as the evidence of her mother (P.W. 3) and the evidences of the two Doctors (P.W. 4) and P.W. (5) and held that the accused persons committed rap on P.W. 2 forcibly without her con 843 sent.
It has been further found from the reliable evidences of P.Ws. 1 and 3 that as soon as P.W. 2 met her mother, P.W. 3, P.W. 2 told her mother about both the accused persons committing rape on her in a solitary house and also about the accused persons taking her away to the highway and keeping her in a truck, and corroborate the version of P.W. 2 regarding the occurrence of rape committed n her by both the accused persons.
It has been further observed that even though the P.Ws. 7 and 8 became hostile still then their evidences can be safely relied on as the same fully corroborates the version of P.W. 2 that on the relevant night the she, with the help of P.W. 7 had taken shelter in the house of P.W. 8 P.W. 6 who the driver of the truck No. ORG 4839 also stated in his evidence that the accused persons and two others took the victim girl and left her in the truck.
P.W. 6 further admitted that as he stopped the truck at village Ambura for unloading the boulders, the girl had stealthily left his truck and inspite of his searching her, he could not trace her.
This fully supports the version of P.W. 2 that she left the truck and concealed herself near a fence in darkness.
The learned Judge, therefore, held "Hence, on a careful scrutiny of the evidences of the hostile witnesses P.Ws. 6 and 8 it is seen that even they corroborate the evidence of the victim gild, P.W. 2 on material aspects of the prosecution case.
" In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; as follows: "Corroboration is not the sine qua non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault inthe absence of corroboration as a rule, is adding insult to injury.
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that only incident which is likely to reflect on her chastity had ever occurred.
She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, 844 relatives, friends, and neighbours.
She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to book.
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated.
" The above observation has been made by this Court relying on the earlier observations made by this Court in Rameshwar vs The State of Rajasthan, with regard to corroboration of girl 's testimony and version.
Vivian Bose, J, who spoke for the Court observed as follows: "The rule, which according to the case has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, . . . .The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in very case, be corroboration before a conviction can be allowed to stand.
" In the instant appeal as had been stated hereinbefore that P.W. 2, the victim girl has clearly stated in her evidence that she had been taken to a solitary house in the hills by the appellant No. 1 Gagan Bihari Samal and there she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
He uncontroverted testimony has been accepted by all the courts and the courts concurrently found that she was raped without her consent.
It has been tried to be contended on behalf of the appellants that the amended section 114(A) was brought into the Evidence Act after the commission of the offence for which the appellants were charged and as such no assumption can be made on the basis of this provision.
This submission is of no avail in as much as it is clearly evident that the victim girl protested and 845 struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on part of the victim girl in such sexual intercourse apart from the legal presumption that follows from the provisions of Section 114(A) of the Evidence Act.
The learned counsel on behalf of the appellants further tried to argue on the basis of some minor discrepancies in the evidences of P.W. 2 that the prosecution case was a false one and it has been foisted on the appellants due to enmity and also due to accused Prafulla, one of the appellants, having disagreed to marry the victim girl.
The courts below have clearly found that the defence case was not at all sub stantiated by any cogent evidence.
So this contention is not at all tenable.
It is apropos to mention here the observation made by this Court in the case of State of Orissa vs Nakula Sahu and Ors., ; which are set out herein: "Although the revisional power of the High Court under Section 439 read with section 435 is as wide as the power of Court of appeal under Sec.
423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.
Inspite of the wide language of Section 435, the High Court is not excepted to act under Section 435 or Section 439 as if it is hearing an appeal.
" The High Court of Orissa referred to the said observation and rightly held that the High Court cannot be expected to re appraise the evidence as a court of appeal.
This Court hearing an appeal by special leave cannot consider and re appraise the evidences once again in the face of concurrent findings of facts arrived at by all the courts below.
For the reasons aforesaid we dismiss the appeal and uphold the conviction and sentence as found by the High Court.
R.P. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellants forcibly took P.W. 2 to a lonely place on 19.3.1983, made her to drink liquor and committed sexual assault on her.
Thereafter they left her in a truck.
While the said truck was unloading materials near a village, the victim stealthily left the truck and concealed herself near a fence.
P.W. 7 rescued her and took her to the house of P.W. 8, one of her distant relative, from where her father P.W. 1 took her back and lodged the report at the police station.
A case under sections 363 and 376 read with section 341.I.P.C. was registered against both the appellants.
After completion of the investigation, a charge sheet was submitted and the appellants were tried for the aforesaid offences.
The appellants denied the prosecution allegations and pleaded that they were falsely implicated because of refusal by one of them to marry the girl and previous enmity with the other.
The Assistant Sessions Judge rejected the defence pleas, and found that the appellants committed rape on the victim without her consent, and relying on section 114A of the Evidence Act, convicted the appellants under section 376(2)(g), I.P.C. and sentenced each of them to rigorous imprisonment for three 840 years.
Since the victim was more than 16 years of age, the appellants were acquitted of the charge under section 363, I.P.C. On dismissal of their appeal against the conviction and sentence by the Addl.
Session Judge, the appellants filed a revision application before the High Court.
The High Court duly considered and appraised the evidence and held that the appellants committed rape on PW 2 forcibly without her consent.
Ultimately the appellants came in appeal by special leave to this Court.
Dismissing the appeal, this Court, HELD: 1.
In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
However, corroboration is not the sine que non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
[843D F] Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; and Rameshwar vs The State of Rajasthan, ; , relied on.
In the instant case, the victim girl clearly stated in her evidence that she had been taken to a solitary house in the hills by appellant No. 1 where she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
Her uncontroverted testimony was accepted by all the courts and they concurrently found that she had been raped without her consent.
[844F G] 3.
Apart from the legal presumption that flows from the provisions of section 114A of the Evidence Act, it is clearly evident in the instant case, that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse.
[844H; 845A] 4.
The High Court rightly held that it cannot be expected to re appraise the evidence as a court of appeal while exercising its revisional power under section 401 Cr.
P.C. [845E F] 841 State of Orissa vs Nakula Sahu and Ors., ; , relied on.
This Court hearing an appeal by special leave cannot consider and re appraise the evidence once again in the face of concurrent findings of facts arrived at by all the courts below.
[845F]


judgement:
1 of 1991.
IN Writ Petition No. 491 of 1991.
WITH Writ Petition Nos. 541 & 560 of 1991 etc.
(Under Article 32 of the Constitution of India).
G. Ramaswamy, Attorney General, Shanti Bhushan, Ashok Desai, Hardev Singh, Ms. Indira Jaisingh, P.S. Poti, Rajinder Sachhar, M.K. Ramamurty, R.K. Garg, S.K. Garg, S.K. Dholakia, Santosh Hedge, V.N. Ganpule, Tapas Ray, N.B. Shetye, P.P. Rao, Kapil Sibal, D.S. Tewatia, Hari Swarup, Jayant, Jayant Bhushan, Prashant Bhushan, Ms. Madhoo Moolchandani, Ms. Kamini Jaiswal, A.K. Srivastava, E.M.S. Anam, N.D. Garg, A.M. Khanwilkar and Ms. A. Subhashini for the Appearing Parties.
The following Order of the Court was delivered: This writ petition is by a body of advocates styled "Sub Committee on Judicial Accountability" and raises certain questions as to the validity and implementation of the action of the Speaker of the Lok Sabha admitting a notice of motion moved by 108 Members of Parliament under Article 124(5)read with the and constituting an Inquiry Committee consisting of a Judge of the Supreme Court, Chief Justice of a High Court and a jurist to investigate into the allegations of misconduct made against a sitting 743 Judge of the Supreme Court pertaining to his conduct as the erstwhile Chief Justice of the Punjab and Haryana High Court.
The main prayers in the writ petition are that the Union Government be directed to afford facilities to the Inquiry Committee to discharge its constitutional and statutory functions; and for directions to the Hon 'ble Chief Justice of India to abstain from allocating any judicial work to the concerned Judge during the pendency of the proceedings before the Committee.
In regard to the latter prayer that notice should go to the Hon 'ble Chief Justice of India, we think that aspect of the matter should be deferred for the present and considered at the appropriate stage of the final hearing.
In regard to the directions to the Union Government, the Union Government by means of an affidavit subscribed to by the Joint Secretary, Ministry of Law and Justice, has made manifest its stand that in its view the motion initiated by the 108 Members of Parliament on which the Speaker took the decision to constitute a Committee had lapsed with the dissolution of the Lok Sabha and that nothing further remains to be done in the matter.
It is in that view, as averred in the affidavit, that the Government of India did not advise the President to issue any notification as required by Para 9 read with Para 11(b)(i), of Second Schedule to the Constitution enabling the sitting Judge of this Court and the Chief Justice of High Court to reckon the time spent by them in functioning as members of the Committee as part of their `actual service '.
The contention of the petitioner is that having regard to the constitutional and statutory of the sitting Judges who function in the Committee, the time spent by them in performance of such function is to be reckoned as part of their `actual service ' as judges and no notification under the concerned provisions by the President is necessary.
It is relevant to mention here that some of the interveners who seek to oppose the writ petition have, in addition to their stand against the writ petition, also filed individual writ petitions of their own in which, more or less, they seek to endorse the stand taken by the Government raising the question as to whether the motion survives the dissolution of the Lok Sabha or not.
Shri Shanti Bhushan, learned counsel for the petitioner made an impassioned plea that having regard to the dire need of maintaining public confidence in the apex institution and its reputation it is necessary that the concerned Judge should abstain from discharging judicial functions during the pendency of the enquiry against him.
In the alternative, it is submitted that if a direction to that effect is not issued, 744 it should at the least necessarily be directed that pending disposal of the writ petition on merits, the Union of India shall afford to the Committee such facilities as may be necessary for its effective and prompt functioning.
Shri Shanti Bhushan submitted that even if ultimately the writ petition fails no loss or injury would be caused to anybody and what would have resulted would only be that the eminent body of Judges would have Occasion to look into the allegations against a sitting Judge and if they found the allegations to be baseless, the concerned Judge would be cleared of the imputations and cloud against his conduct.
He urged, if such a direction or interim mandamus is not issued it would seriously impair the image of the Court as the apex Court in the country and affect the confidence of the people in the quality of justice dispensed by it.
We have given our anxious consideration to the matter and having regard to the nature and importance of the issues involved it is appropriate that the main matter along with the connected writ petitions is heard as expeditiously as possible.
We, therefore, direct that his matter be listed on July 9, 1991 with a direction that hearing of the matters be proceeded with day to day until conclusion.
We also indicated that arguments on all sides should be completed within a period of ten working days and the learned counsel for all the parties and interveners should file their written arguments in advance latest by July 1, 1991.
The actual hearing time to each of the counsel will be appointed at the commencement of the hearing on July 9, 1991.
In this view of the matter, we think it appropriate not to embark upon an examination of the contentions in support of and the prayer for interlocutory relief.
We, however, make it clear that our disinclination to issue any interlocutory orders at this stage shall not be construed as an expression of opinion on the merits of the merits of the issues either way and shall not also be construed as an interdiction of the functioning of the Committee if the Committee otherwise considers appropriate to proceed with the matter.
We also make it clear that during the pendency of these matters before this Court no proceeding pending or filed hereafter in any other court shall be heard or any order passed therein relating to the issues involved in these matters.
NVP Petition dispose of.

summary/full:
A Writ Petition filed by the Petitioner Committee, a body of Advocates, praying for directions to be issued to the Union government and the Chief Justice of India, in connection with the enquiry into allegation of misconduct made against a sitting Judge of the Supreme Court, pertaining to his conduct as Chief Justice of a High Court, raised certain questions as to the validity and implementation of the action of the Speaker of the Lok Sabha in admitting a notice of motion moved by the Members of Parliament under Article 124(5) of the Constitution of India, 1950 read with .
Some intervention applications, opposing the Writ Petition, and some other Writ Petitions more of less endorsing the Government 's stand raising the question as to whether the motion in question survived the dissolution of the Lok Sabha or not, were also filed.
Praying for interim direction, which was identical with the prayer in main Writ Petition, it was urged on behalf of the Petitioner Committee that having regard to the dire need of maintaining public confidence in the institution and its reputation as apex Court, it was necessary that the concerned Judge should abstain from discharging judicial functions during the pendnecy of the enquiry, and a direction should be issued accordingly, or pending disposal of the Writ Petition, the Union Government should be directed to afford all necessary facilities to the Committee for smooth and efficient functioning.
Directing expeditious hearing of the Writ Petition and connected matters, this Court, 742 HELD: 1.1 Having regard to the nature and importance of the issues involved, it is appropriate that the main matter along with the connected writ petitions is heard as expeditiously as possible.
Accordingly, this matter should be listed on July 9, 1991 and hearing of the matters proceeded with day to day until conclusion.
[744D] 1.2 In the circumstances, it is not appropriate to embark upon an examination of the prayer for interlocutory relief.
However, the Court 's disinclination to issue any interlocutory orders at this stage should not be construed as an expression of opinion on the merits of the issues either way and as an interdiction of the functioning of the Committee, if the Committee otherwise considers appropriate to proceed with the matter.
[744E F]