1. This is a revision petition against an order passed by the Additional Sub-Judge, Muzaffarabad dated 11-I I-1968.
2. Brief facts of the case are that Ghulam Nabi petitioner brought a suit for restitution of conjugal rights against Mst. Nazir Fatima non-applicant No. 1 and also sought a permanent injunction against some other persons including Abdur Rahim non-applicant to the effect that they should not stand in the way of her living with him.
3. The suit was brought on the 29th of June 1968. On the next date, Nazir Fatima in her written statement admitted the claim of the plaintiff. The Court also recorded her statement in support of the written statement. However, Abdur Rahim sought an adjournment for filing his written statement which was granted by the Court. This he filed on the 11th of November 1968, wherein he claimed that there was collusion between the plaintiff and defendant Nazir Fatima; that Nazir Fatima was in fact his wife and that the suit had been brought in order to get a collusive decree from the Court regarding an imaginary and non-existent marriage.
4. At the same time the plaintiff made an application for giving up Abdur Rahim and thus sought a decree for restitution of conjugal rights against Nazir Fatima only on the basis of her admission. The Court, however, did not pass the decree prayed for and instead fixed the 6th of December for recording the statements of the parties. On this date Mst. Nazir Fatima staged a complete valte face and claimed to be the wife of said Abdur Rahim co-defendant. She further alleged that her thumb---impression on the written statement was obtained by fraud.
5. The learned counsel for the petitioner-plaintiff argued that the trial Court ought to have struck off the name of Abdur Rahim and passed a decree for restitution of conjugal rights in A favour of his client either on the date when Nazir Fatima filed her written statement or at least on the date when his client gave up Abdur Rahim and asked for a decree against Nazir Fatima only. The questions that have, therefore, to be deter--mined in this revision are :-
(i) Can the plaintiff give up a defendant as of right and at his sweat will?
(ii) Was it either obligatory or just for the trial Court to pass a decree in favour of the plaintiff on the basis of the written statement filed by Nazir Fatima?
6. "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 . . "
7. According to plain reading of the rule it would be applicable only if it were held that Abdur Rahim was a person improperly joined as a defendant. Can he be so described? Here is a dispute about the nikah of the same woman between them. Each claims her as his wife. It was argued that the only question involved in the suit was whether she is the wife of the plaintiff? She cannot be the wife of both of them at one and the same time. If she is held to be the wife of plaintiff it would mean that she is not tire wife of the co-defendant and vice versa. In case Nazir Fatima had not subsequently repudiated her earlier statement, he had, I believe, a right to prove not only that the woman was in fact his wife but also that there was collusion between plaintiff and the woman concerned. To strike out the name of such a claimant and paying no heed to his allegations of collusion, proceed to pass a decree for the restitution of conjugal rights would not only lead to the undesirable consequence of the multiplicity of legal proceedings but would also offend against public morality and tend to bring the administration of justice into disrepute. It seems to me that a course so pregnant with possibilities ought to be avoided.
8. Now let us take an extreme case. Suppose such a woman is in reality the wife of the co-defendant but the plaintiff in collusion with the woman brings a suit for the restitution of conjugal rights and the woman admits the claim but the real husband being a co-defendant contests it and alleges conclusion? The duty of a Court in such circumstances appears to me to be quite clear. It must proceed to determine their rival claims and decide whose wife she is? To ignore the allegation of collusion and decline to pronounce upon their rival claims and instead facilitate the passage of a consent decree by resorting to Order I, rule 10, C. P. C. For eliminating his name would, in my humble opinion, constitute a fraud on the statute. The term "abuse of the process of the Court" could perhaps nowhere be more aptly used as in such a situation. The decree in such a case would amount to a licence for immorality. The husband no doubt has legal remedies open to him but it must take some time before his honour is vindicated. Meanwhile he may have suffered an injury which is irreparable. There is a Kashmirt proverb which translates: Until the truth manifests itself, a whole world may have been burnt. What I want to stress is that no action of the Court should contribute to such a situation.
9. It was contended that the plaintiff was as of right entitled to give up the defendant. I do not think it can be laid down as a universal rule. Even in cases of persons improperly imp leaded the plaintiff has to apply to the Court which has the discretion to grant or refuse such an application and on terms it deems fit.
10. Who is a proper party? In PLD 1956 Kar. 391 a proper party was defined as a person who will be prejudiced by his not being a party to the suit. It was held in 13 Mad. 32 that it was not necessary that in order to treat a defendant as a proper party, some relief must be claimed against him.
11. It was held in AIR 1925 Cal. 1257 :- "The expression proper party means the party who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in coming to a decision or the point in issue."
12. It was held in AIR 1929 Mad. 443 :- "Even against the plaintiffs consent a new party may be imp leaded as a defendant and that he may be so added though he may thereby be in a position to counter clam against the plaintiff."
13. It was next contended that even if Abdur Rahim could no be given up, either for reasons of law or justice, the Coin ought to have passed a decree in favour of plaintiff so far a Nazir Fatima was concerned on the basis of her not being issue with the plaintiff and having in fact admitted the allegation in the plaint. This argument was based on Order XV, rule C. P. C. Which is reproduced below "Where there are more defendants than one and any or of the defendants is not at issue with the plaintiff on at question of law or of fact the Court may at once pronoun judgment for or against such defendant and the suit she proceed only against the other defendants."
14. The rule does not make it obligatory for the Court to pass a decree at once. It is evident from the use of the word `m~ in the rule. No direct authorities are available on this rule 1 under Order XII, rule 6 which entitles a party to request Court to pass judgment or order upon admission of fact in the pleadings without waiting for the determination of any other question between the parties, the rule has come for interpre--tation before various High Courts and it has been held that it was not obligatory for the Courts to pass orders immediately on the basis of such admissions as may have been made in the case.
15. "A judgment on admission by the defendant under Order XII, rule 6 is not a matter of right; it is in the discretion of the Court so that if a case involved questions which cannot conveniently be disposed on a motion under the rule, the Court may in the exercise of its discretion refuse the motion."
16. It was held in AIR 1929 Lah. 569 :- "Order XII, rule 6 is merely permissive; upon an apple--cation made under the rule, the Court may make such order or give such judgment as the Court may think just. The Court is not bound to pass an immediate judgment."
17. Therefore, in my opinion, it would not have been proper for the Additional Sub-Judge to pass a decree for conjugal rights in favour of the plaintiff on the basis of an admission of his claim by defen--dant No. 1 in view of the fact that defendant No. 4 came forward with a rival claim against the same woman and alleged collusion between her and the plaintiff. On the other hand, passage of such a decree would have been highly imprudent and injudicious.
18. Therefore, I see no force in this revision which is hereby dismissed with costs.
19. S. A. H.