P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

The suit out of which this revision petition has arisen was instituted on the 11th of December 1951 by Mst. Iqbal Begum, Respondent No. 1, against the petitioner and respondents Nos. 2 to

8. This was a suit for the administration of the estate of Malik Hira who had died fifty years ago. The following pedigree‑table, which is given in the plaint itself, shows the relationship of the parties with Malik Hira deceased :‑ | ________________________|______________________________ | | | Mst. Amir Nishan Mst. Ghulam Mst. Iqbal Barkat Ali Fateh Muhammad Fatima Begum Sardar Begum Defendant No. 7). Din Muhammad (Plaintiff). (Defendant (Defendant No. 1). No. 8). | | | ______________________________|____________ | | | | Mst. Razia Begum Mst. Ruqqaya Begum | (Defendant No. 6). | | __________________________________________________________________| | | | | Mst. Siraj Begum Mst. Hamida Mst. Majida Mst. Islam (Defendant No, 2). Begum Begum Begum (Defendant (Defendant (Defendant No. 3). No. 4). No. 5). According to the plaint, at the time of his death. Malik Hira left his widow Mst. Rajjan Bibi, one son Barkat Ali, and three daughters, Mst. Amir Nishan, Mst. Ghulam Fatima and Mst. Iqbal Begum (plaintiff). Mst. Rajjan Bibi, Mst. Amir Nishan, Mst. Ghulam Fatima and Barkat Ali had died before the institution of the suit. Mst. Razia Begum petitioner is a daughter of Mst. Ghulam Fatima and was impleaded as defendant No. 6 as heir to Mst. Ghulam Fatima and Mst. Ruqqaya Begum, her sister, who had died earlier Fateh Muhammad, defendant No. 7, is the husband of Mst. Amir Nishan and Din Muhammad, defendant No. 8, is the husband of Mst. Ghulam Fatima. They were impleaded as defendants as heirs to Mst. Amir Nishan and Mst. Ghulam Fatima, respectively. It was alleged in the plaint that on the death of Malik Hira, his widow, Mst. Rajjan Bibi, managed the estate of Malik Hira on behalf of the whole family, and on her death his son Barkat Ali continued to manage it till the year 1948 when he died. During all this period the parties as co sharers and tenants‑in‑common actually and constructively enjoyed their shares in the income of the property, but on the death of Barkat Ali in the year 1948, his heirs defendants Nos. 1 to 5, stopped paying the share in the income of the estate to the plaintiff and defendants Nos. 6 to

8. The relief sought in the plaint was that a decree for administration of the estate of Malik Hira deceased be passed with costs against the defendants with due regard to the effect of later changes by devolution in the rights and shares; and as a consequence of administration under the supervision of the Court accounts be taken of the property and income and the available residue in administration be distributed among the heirs after or without payment of any legacy etc. as ascer tained by the Court. The suit was contested by defendants Nos. 1 to

5. But defendants Nos. 6, 7 and 8 fully supported the claim of the plaintiff in their written statements. Certain issues were framed by the trial Court and evidence was led by the parties. On the '30th of July 1954, the suit was dismissed by Qazi Muhammad Dastgir, Civil judge 4th Class, Lahore, on the short ground that it was barred by limitation. The plaintiff went up in appeal against this order, and on the 19th of April 1956, the learned Senior Civil judge, who heard the appeal set aside the judgment and decree of the lower Court and remanded the case for fresh decision in the light of the observations made by him. He framed another issue as regards the question of adverse possession and permitted the parties to lead evidence on that issue. The case was then entrusted to Chaudhri Muhammad Siddiq, Civil judge 1st Class, Lahore, for disposal, as by that time Qazi Muhammad Dastgir had been transferred from Lahore. Before him an attempt was made for the appoint ment of an arbitrator but eventually this proposal fell through on the 8th of December 1956. Then a short date was obtained by the plaintiff for putting in a compromise. On the 18th of December 1956, the plaintiff with her counsel, defendant No. 1 with Maulvi Siraj‑ud‑Din, counsel for defendants Nos. 1 to 5, and defendant No. 7 were present in Court. Defendants Nos. 6 and 8 were, however, not present In their absence the plaintiff made the following statement :

"Defendants Nos. 6 to 8 are pro forma, I give them up. Their names may be removed from the present suit". Then the statement of defendant No. 7 was recorded who stated that he had no objection to the statement of the plaintiff. The Court then passed the following order :‑ "In view of the above statements, I order the names of defendants Nos. 6 to 8 to be removed from the record of the present suit. Necessary amendment to be made in the plaint and register No. 1." It is against this order that defendant No. 6 has come up in revision before this Court. Learned counsel for the petitioner strenuously argued that she was admittedly one of the heirs of Malik Hira deceased through her mother Mst. Ghulam Fatima and is entitled to a share in the property left by him. She was, therefore, a necessary party and was very much interested in the result of this suit. He contended that the learned Civil Judge acted illegally and with material irregularity in the exercise of his jurisdiction in striking off her name from the array of the defendants in the suit. Learned counsel for the plaintiff and defendants Nos. 1 to 5 candidly admitted before me that the petitioner was an heir of Malik Hira deceased end was also a necessary party to the suit. They could not support the order of the learned Civil judge on any rational basis and frankly conceded that this order could not have been legally passed. Sub-rule (2) of rule 10 of Order I, Civil P. C., provides that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out. There can be little doubt that the application of this sub-rule is limited only to cases where it is established that a party whether as plaintiff or defendant has been improperly joined in the suit. The Court is vested with the jurisdiction of striking off the name of a party only on the condition that such a party is improperly joined in the suit. The impropriety referred to in this sub-rule obviously means that the party has no interest in the suit and has no connection whatever with the reliefs claimed in the suit. It appears to me that the learned Civil judge did not apply his mind at all to this aspect of the case. In his order he did not say that the defendants Nos. 6 to 8 had been improperly joined and in fact, in the circumstances of the case, he could not have said so. Little did he realise that it was an administration suit in which all the heirs of the deceased were as much interested in the estate of the deceased as the plaintiff herself and that these defendants were not pro forma. In an administration suit the Court takes upon itself to a large extent the functions of an executor or administrator and administers the estate of the deceased. In Mahbub Alam v. Razia Begum and others (P L D 1949 Lah. 260), Kayani, J. while dealing with the question as to what are the objects of an administration suit, referred to a passage from Sirajiyyah which had been quoted by the author in Wilson's Anglo Muhammadan Law (6th Edition) in the opening paragraph of Chapter VII heading "Administration". The passage is as follows:-- "There belong to the property of a deceased person four successive duties (to be performed by the Magistrate) first, his funeral ceremony and burial without superfluity of expense, yet without deficiency; next, the discharge of his just debts from the whole of his remaining effects; then. the payment of his legacies out of a third of what remains after his debts are paid; and lastly, the distribution of the residue among his successors, according to the Divine Book, to the Traditions, and to the Assent of the Learned." "It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate, notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of- the residue forms part of the administration of an estate, it clearly falls within the province of an administration suit." It follows that the administration of the estate of a deceased person consists firstly of paying his funeral expenses, next his debts and then the legacies under the will, if any. The residue of his estate is then divided amongst his heirs. An. heir. of a deceased person even if he may have an infinitesimal share in the property is interested in the estate of the deceased and cannot be held to be an unnecessary or improperly joined party in a suit. It is, therefore, clear that the order passed by the Civil Judge was in direct contravention of the provisions of law on the subject and he acted illegally in the exercise of his jurisdiction by acting in breach of sub-rule (2) of rule 10 of Order I, Civil P. C. Such an order is revisable by the High Court under section 115, Civil P. C. It was held by their Lordships of the Privy Council in N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (AIR 1949 PC 156 = PLD 1949 PC 26), that an order can be revised under, section 115, Civil P. C. if the subordinate Court appears to have acted in the exercise of its jurisdiction illegally, i.e. in breach of some provision of law, or with material irregularity, .i e., by committing some error of procedure in the trial which is material in that it may have affected the ultimate decision. The principle laid down in this ruling fully covers the facts of the present case. I am, therefore, of the opinion that the impugned order can be revised by this Court in the exercise of its jurisdiction under section 115, Civil P. C. Learned counsel for the plaintiff and defendants Nos. 1 to 5, however, drew my attention to the fact that soon after the names of defendants Nos. 6 to 8 had been struck off the record, a compromise effected between the plaintiff and defendants Nos. 1 to 5 was put in Court and a preliminary decree in terms of the compromise was passed on that very day by the learned Civil Judge. It was, therefore, contended that the petitioner should have availed of the remedy by filing an appeal against the preliminary decree. Learned counsel for the petitioner maintained that as she was no longer a party to the suit at the time of the passing of the decree, she could not have filed any appeal against the preliminary decree. As 'the learned counsel for the parties were unable to cite any authority in support of their respective contentions, I adjourned the hearing for a fortnight to unable them to study `this point. On the adjourned date the learned counsel for the plaintiff and defendants Nos. 1 to 5, however, conceded that the petitioner could not have filed an appeal against the preliminary decree. I think it is well settled that no person unless he is a party to the suit is entitled to appeal under section 96, Civil P. C. If any authority were needed for this proposition, reference may be made to Rustomji v. Official Liquidator, People's and Amritsar Banks Ltd. (79 P R 1919) and the Indian Bank Ltd., Madras v. Seth Bansiram Jeshamal Firm (I L R 57 Mad. 670). Learned counsel for the plaintiff and defendants Nos. 1 to 5 then argued that the impugned order itself was in effect a decree and was appealable as such and, therefore, the petitioner had her remedy of filing an appeal against the order and could not have invoked the revisional jurisdiction of this Court under section 115, Civil P. C. They maintained that the order amounted to a final adjudication of the rights of the petitioner and although as an order it was not appealable either under section 104 or under Order XLIII, Civil P. C. it fell within the purview of the definition of "decree" given in clause (2) of section 2 of the Civil P. C. In support of their contentions they relied on Rama Rao and another v. The Raja of Pittapur and others (I L R 42 Mad. 219), Ramji Pandey v. Alafkhan and others (A I R 1925 Pat. 121), Shair Ali v. Jagmohan Ram and another (A I R 1931 All. 333 (2)) and Nand Kumar Sinha v. Rai Bahadur Pashupati Ghosh and others (A I R 1941 Pat, 385). In the first case it was held by a Division Bench of the Madras High Court that an order in a suit striking out from the array of parties a defendant as an unnecessary party under Order I, rule 10 (2), Civil P. C. and then dismissing the suit against him was in effect a decree and was appealable as such. The facts of that case were that one Raja Venkata Rao Bahadur died in the year 1871 and his widow who inherited his estate adopted Krishnasuri Rao in 1914. Raja of Pittapur claiming to be the nearest reversioner of Raja Venkata Rao Bahadur brought a suit that the adoption was invalid. Rama Rao then applied for being impleaded as a party claiming that in fact he was the nearest reversioner of Raja Venkata Rao Bahadur and Raja of Pittapur was not a reversioner at all. This application was dismissed and then Rama Rao filed a suit against Raja of Pittapur and others in which he prayed that it be declared that Raja of Pittapur was not a reversioner at all of Raja Venkata Rao Bahadur and was not entitled to conduct the proceedings in his own suit. It was also prayed that the adoption of Krishnasuri Rao being invalid be also set aside. Raja of Pittapur made an application in the course of the suit that he was not a necessary party and that the suit should be dismissed against him, and the subordinate judge passed the following order:‑-- "I, therefore, order under Order I, rule 10 (2) of the Civil Procedure Code that the name of the first defendant be struck out and removed from the record and under Order VI, rule 16, that the first prayer in the plaint be deleted as unnecessary. The result will be that the suit will proceed only against the other defendants and confined to the question of the adoption." Rama Rao preferred an appeal against that order. A preliminary objection was raised on behalf of the respondents against the maintainability of the appeal. Seshagiri Ayyar, J., while dealing with this question, observed as follows:

"His contention is that the order of the Subordinate judge comes under Order I, rule 10, clause (2) of the Civil P. C. and that no appeal is provided against it under Order XLIII. In a way the conclusion of the Subordinate judge may be said to come within Order I, rule

10. But what we have to see is the substance of the order and not the form of it. In his order the Subordinate judge examines the right of the plaintiffs to bring a suit like the present one and concludes, having regard to certain authorities which he has quoted, that such a suit would not lie. In my opinion this is an adjudication determining the rights of the plaintiffs to bring a suit of this nature and his order is a 'decree' as defined in section 2, clause 2 of the Civil P. C." The facts of that case are clearly distinguishable from the facts of the present case. In the instant case no question as regards adjudication of the rights of the petitioner had arisen and in fact the Court by passing the impugned order did not adjudicate the rights of the parties with regard to the matters in controversy. The right of the petitioner as an heir of the deceased was not disputed by any of the parties at any stage of the proceedings. The plaintiff misled the Court by making a statement that the petitioner was merely a pro forma defendant. A perusal of the plaint itself shows that she was not a pro forma defendant in the suit. In fact the petitioner in her written statement had supported the claim of the plaintiff and had asked for a decree in terms of the relief prayed for in the plaint. It was after all an administration suit in which the petitioner was vitally interested. In the second case Ramji Pandey v. Alafkhan and others Das, J. of the Patna High Court relied on Rama Rao v. Raja of Pittapur and held that an appeal was open to Ritubhanjan not indeed from the order of the Munsif looked upon as an order passed under Order I rule 10, but from that order looked upon as a decree declining to adjudicate upon the claim of Bichan and therefore of Ritubhanjan. That was a partition suit which was instituted by Ramji Pandey against various persons including Bichan Pandey. On an application by Ritubhanjan that he had purchased Bichan Pandey's interest in the property he was also impleaded as a party. The plaintiff thereafter applied for an order that the names of Bichan Pandey and Ritubhanjan be struck out and the Munsif accordingly struck out the names of these two persons and after striking out their names passed a pre liminary decree for partition. On an appeal filed by Bichan Pandey and Ritubhanjan this order was set aside by the judicial Commissioner. Against this order the plaintiff Ramji Pandey went up in revision before the High Court and it was contended that an order under Order I, rule 10 was not appealable under the Code of Civil Procedure. The learned Judge conceded this position but went on to say:‑-- "Now a partition suit differs from other suits. In that every party whether arrayed on the side of the plaintiffs or on the side of the defendants is in the position of a plaintiff in so far as every party whether plaintiff or defendant is entitled to ask the Court to allot a share of joint property to him." He further observed:

"A defendant certainly could not complain if the plaintiff himself asked that the suit as against a particular defen dant should stand dismissed. But as I have said a partition suit stands entirely on a different footing. Although arrayed on the side of the defendants Bichan Pandey was in the position of a plaintiff in so far as he was entitled to ask the Court to allot a share of the properties to him and the learned Munsiff by the course which he took declined to consider the case of Bichan Pandey, The result of his order is that Bichan Pandey is unable to get any relief in the partition action. That being so, the question is whether the order of the Munsiff was appealable. In my opinion it was. Although the order was passed under Order I, rule 10 of the Code, the effect of the order was that the Court declined to adjudicate on the question distinctly raised by Bichan Pandey." This case does lend support to the contention raised on behalf of the plaintiff and defendants Nos. 1 to

5. But if I may say so with respect, the learned judge did not consider the question at all whether such an order was a "decree" as defined in clause (2) of section 2 of the Code of Civil Procedure. I shall presently deal with this question after referring to the other two cases cited before me. In the third case Shair Ali v. Jagmohan Ram, a Division Bench of the Allahabad High Court held that where a cause of action against a defendant was specifically pleaded and a distinct relief had been claimed against him, and the defendant was not impleaded only for the sake of convenience, an order directing the removal of his name from the array of the parties was in substance, although not in form, a decree, because the effect of the order was the refusal to grant the relief to the plaintiff which he had prayed for and as such the proper remedy for the party aggrieved from the order was to file an appeal from it and not an application in revision under section 115, Civil P. C. Both the Madras and Patna cases cited above were also referred to in this judgment and the views expressed in those judgments on the point involved were endorsed. The facts of this case were that Shair Ali had been prosecuted by Jagmohan Ram in the Court of Babu Janki Nath Sahai, Sub‑Divisional Magistrate under sections 447 and 323, I. P. C. It appears that he was convicted under section 451, I. P. C. but was acquitted on appeal by the Sessions Judge. He then filed a suit for damages on account of malicious prosecution against Jagmohan Ram and Babu Janki Nath Sahai. He made serious allegations against the latter that he was a hater of Musalmans and the complaint against him by Jagmohan Ram was instigated and inspired by him. The suit was contested and one of the pleas raised on behalf of Babu Janki Nath Sahai was that he had acted judicially in the discharge of his judicial duties within the limits of his jurisdiction and was, therefore, protected from any liability to the plaintiff by the Judicial Officers' Protection Act of 1850. On this preliminary issue the Munsif held that the complaint had not been filed at the instigation of Babu Janki Nath Sahai and that the plaint had disclosed no cause of action against him. He ordered as follows:‑-- I therefore order under Order I, rule 10, clause (2), that the name of defendant No. 2 be struck off the plaint and that the register be amended accordingly. Defendant No. 2 is to get his costs if he has incurred any." A formal order was drawn up which directed that the plaintiff had to pay to defendant No. 2 a sum of Rs. 51 the amount of costs incurred by him. Shair Ali filed a revision petition against this order and the Court in the circumstances of the case held as has already been stated above. The facts of the case are almost similar to the facts of the Madras case Rama Rao v. Raja of Pittapur and are clearly distinguish able from the facts of the present case, but the following observations of the learned judges are very pertinent to the point involved in the present suit:-- "An order striking out the name of a party is not necessarily a decree. Where the plaintiff had impleaded a person merely upon the ground of convenience and the plaint discloses no cause of action against him and the plaintiff has claimed no relief against him, the order of the Court directing the removal of the name of such a defendant does not operate as a decree, for it has not the effect of an adjudication and the integrity of the original claim remains unbroken." In the instant case although the petitioner had been impleaded as a necessary party yet the plaint did not dis close any cause of action against him, and the plaintiff did not claim any relief against her. In point of fact, according to the plaint, the rights of the plaintiff and the petitioner were identical. In the last case Nand Kumar Sinha v. R. B. Peshupeti Ghosh a Division Bench of the. Patna High Court held that an order striking off the names of those defendants against whom the suit was held not to be maintainable was a decree within the meaning of section 2 (2) and was appealable as such, even though the Court erroneously referred to the order as being one under Order I, rule 10, Civil P. C. The facts of that case were exactly similar to the facts of the Allahabad case referred to above. Some of the defendants in the case had raised the plea in bar that the plaintiff should have obtained the consent of the Governor of the Province under section 270 of the Government of India Act as a condition precedent to the institution of the suit. The Munsif had accepted this plea and had struck off the names of these defendants. The facts of this case are also dis tinguishable from the facts of the present case. The same remarks apply to this case which I have already made in respect of the Allahabad case. In order to determine the question whether such an order could be looked upon as a decree or was in substance a decree, it is necessary to refer to the definition of "decree" as given in clause (.2) of section 2 of the Code of Civil Procedure. It is in the following terms :‑ "Decree" means the formal expression of an adjudication which, so far, as regards the Court expressing it, con clusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.‑A decree is preliminary when further proceedings have to be taken before the suit can be com pletely disposed of. , It is final when such adjudication completely disposes of the suit. It may be partly pre liminary and partly final :" It is abundantly clear from this definition of "decree" that before any adjudication or order can be treated as a decree it must fulfil the following conditions :‑ (1) There must be a formal expression of adjudication. The word "formal" in the definition of the word "decree" is very important and cannot be ignored, and the word "adjudication" means judicial determination of a cause after taking into consideration the material on the record and after hearing the parties. (2) There must be 'conclusive determination of the rights of the parties' which expression means an adjudica tion which brings the suit to an end as distinct from any interlocutory orders. Orders made during the pendency of a suit which the Court is required to pass in respect of innumerable matters relating to the suit are only steps towards the final disposal of a suit and are not decrees. The words "rights of the parties" mean substantial rights G asserted and sought to be enforced on the one side and denied by the other side. Orders which do not affect the substantial rights of the parties are procedural orders and are not decrees. (3) The determination must be with regard to all or any of the matters in controversy. The matters in controversy in the suit are those matters which from the pleadings of the parties appear to be in dispute and are the subject matter of litigation. (4) The expression of an adjudication, must be in a suit. If these tests had been applied by Das, J. in Ramji Panday v. Alafkhan and others, to the order passed in that case, I venture to say with respect, he would not have treated the order as a decree. Applying these tests to the impugned order in the present case, I have no doubt in my mind that the essential elements of a decree enumerated above are completely missing from this order. It is not a formal expression of adjudication nor it is a conclusive determination of the rights of the parties with regard to the matters in controversy. The observations of the learned judges of the Allahabad High Court in this connection quoted above are applicable to the case in hand, and with great respect I agree with those observations. As such I do not think that in the circum stances of the case this order can be looked upon as a decree or was in substance a decree. That being so, it was to not appeal able as a decree. No appeal is provided against such an order under section 104 or Order XLIII of the Code of Civil Procedure. The petitioner, therefore, could not have filed an appeal against this order. I have already held above that the order was passed illegally by the learned Civil judge in the exercise of his jurisdiction. This order has manifestly resulted in mis carriage of justice, and I see no reason as to why it should not be set aside in the exercise of the revisional juris diction of this Court under section 115 of the Code of Civil Procedure. For the aforesaid reasons, I accept this revision petition and set aside the order of the Civil judge dated the 18th of December 1956, whereby the names of the defendants Nos. 6 to 8 were struck off from the record, and direct that these defendants shall be impleaded in the plaint as before. The Court shall then proceed to decide the suit in accordance with law. The petitioner will have her costs of this petition from the plaintiff Iqbal Begum, respondent No.

1. K. M. A. Revision accepted.