THIMMEGOWDA v. CHIEF SECRETARY TO GOVERNMENT OFKARNATAKA
1995-12-12
H.N.TILHARI
body1995
DigiLaw.ai
H. N. TILHARI, J. ( 1 ) THIS revision is under Section 115 of the Code of Civil procedure, from the order dated 25-10-1994 on LA. No. III in o. S. No. 340 of 1994 whereby the Munsiff, Mandya, has allowed the application under Order 1, Rule 10, C. P. C. moved by respondent 3 for impleading him as a defendant. The learned court below after having considered the matter and taking into consideration the decisions of this Court in Angeline Monteiro bai and Another v Mrs. Roslie G. Castelino and Sri Vardaman stanakvisi Jain Sravak Sangha v Sri Swami Sangli Muneswara temple Trust (Regd.) , opined that respondent 3 is a necessary and proper party whose presence would help the Court to decide the matter completely and thus allowed the application for impleading him as a defendant in the suit. The plaintiff has challenged the said order in this revision under Section 115, c. P. C. ( 2 ) I have heard the learned Counsel for the revisionist and the learned Counsel for respondent 3. ( 3 ) THE learned Counsel for the revisionist submitted that the learned Court below acted illegally in permitting respondent 3 to be impleaded who is neither a necessary party nor a proper party to the suit as he had no interest in the land in dispute, as the land belongs to the Government, i. e. , respondents 1 and 2. He further submitted that it is well settled that unless and until a third party is a necessary or a proper party, the revisionist could not be compelled to implead such a third party in the suit and as such the learned Court below committed a jurisdictional error in allowing the application of respondent 3 to implead him as a defendant. In support of his contention the learned Counsel for the revisionist made a reference to the decision of the Punjab and Haryana High Court in Banarsi Dass Durga Prashad v panna Lal Ram Richhpal Oswal and Others , and submitted that that decision support his contention that the plaintiff cannot be compelled to add a person as a defendant to the suit unless and until he is a necessary or a proper party for complete adjudication of the case.
He also submitted that it is open to this court to interfere in the case where the Court below has acted illegally or in material irregularity. ( 4 ) THIS revision petition has been opposed by the learned Counsel for respondent 3 Sri Siddaramegowda. He submitted that the revisional jurisdiction of this Court is limited and it is a discretionary power of the Court. He further submitted that the land is, no doubt, a Government land and it is now earmarked for forming sites to be distributed to poor siteless persons in the village and, therefore, the relief sought by the plaintiff in the suit would adversely affect the interest of the common people. Respondent 3 being a social worker is interested to be impleaded in the suit to protect the interest of the Government and, therefore, the learned Counsel for respondent 3 submitted that the Court below has rightly held that respondent 3 is a necessary party to the proceedings and, if there is any error in holding that respondent 3 is a necessary party, that finding of the Court below is not amenable to interference under Section 115, C. P. C. Lastly, he submitted that no irreparable loss or injury will be caused to the plaintiff by the impugned order and as such, in view of the proviso to Section 115 (1), C. P. C. , this court should not interfere with the impugned order. ( 5 ) I have applied my mind to the contentions of the learned Counsel for the parties. The jurisdiction of this Court under section 115, C. P. C. is, no doubt, limited. When power is given to certain persons or authorities, such power has to be exercised in a reasonable manner. As regards the impleading of a party to the suit, the law is to the effect that where 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, the Court may add such person and allow impleadment of that person.
This per se indicates that only he who ought to have been joined either as plaintiff or as defendant, or against whom certain relief is sought in the suit, or who has certain right over the property being a joint owner or a partner, he may be impleaded as a defendant in the suit or the Court may add those persons whose presence is considered to be necessary in order to enable the Court to effectually and completely adjudicate the matter and decide the question involved in the suit. The expression "necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit" used in Order 1, Rule 10 (2), C. P. C. clearly indicates that the person on whom the decision on the questions involved in the suit is binding is a necessary party. This does not mean that respondent 3 is a necessary or a proper party because of his wish to help the Government to contest the suit, as he has no interest in the property. In the case of Sri Vardhaman stanakvisi Jain Sravak Sangh, supra, this Court has laid down the law on Order 1, Rule 10, C. P. C. as under:". . . . the Court has power to direct a person to be made a party to a suit if such person ought to have been made a party or that the Court feels the necessity of impleading him with a view to adjudicate upon and settle all the questions involved in the suit effectually and completely. The questions involved in the suit would mean the question concerning the parties to the suit and not with the questions concerning any third party. A party may be a 'necessary' or 'proper' party to a suit. If a party is a 'necessary party, such a person must be added as a party to the litigation. If such a party is a 'proper' party, then the court may consider whether his presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. . . . . The Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. . . . . . .
. . . . The Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. . . . . . . So in dealing with an application under order 1, Rule 10 (2), the Court has to determine whether the party proposed to be added as a party to a suit is one "who Ought to have been joined as a party. In other words, the Court has to determine whether such a person is a necessary party without whose presence no relief could be granted to the plaintiff or the defendant. In the alternative, the Court has to determine whether the presence of any such person is necessary to decide the dispute between the parties to the suit. In case such a party is only a proper party, then that party can be added if the Court holds that to decide the disputes between the parties effectually and completely, his presence is necessary. The Court has to exercise its discretion while impleading a party in the light of the above provisions". The above observation of His Lordship makes it clear that what is to be determined by the Court is whether a person proposed to be impleaded is a necessary party without whose presence no relief could be granted to the plaintiff or the defendant or whether the presence of such person is necessary to decide the disputes between the parties to the suit and it is only such person who is necessary or proper can be added as a party to the dispute so that the dispute can be effectually and completely disposed of. I perused the impugned order. I find that, though the Court below has, no doubt, mentioned that "third party is necessary party to this proceedings. At any rate he is proper party whose presence will help this Court to decide the matter completely", is routine and repetition of the expression used in the Code. The court below has not indicated how in its opinion the presence of respondent 3 is necessary or proper to decide the case. Finding arrived at by the Court below must be supported by reason. But, no reason is given by the Court below in the case for allowing the? application for impleadment.
The court below has not indicated how in its opinion the presence of respondent 3 is necessary or proper to decide the case. Finding arrived at by the Court below must be supported by reason. But, no reason is given by the Court below in the case for allowing the? application for impleadment. The questions such as, what are the questions in the suit between the parties to be decided in order to grant the relief and how the presence of respondent 3 is necessary to enable the Court to decide the suit, were not considered and determined by the Court below. The impugned order per se appears to have been passed, not in accordance with the provisions of the Code, and without applying its mind to those questions and as such the order passed by the Court below allowing the application for impleadment suffers illegality. No doubt, it is well settled in law that plaintiff cannot be compelled to implead a party who is neither a necessary party nor a proper party in the suit and the Court below is required to indicate its reasons to come to conclusion whether or not respondent 3 is a necessary party or a proper party. As regards the question of irreparable loss and injury, in my opinion, it is rightly contended by the learned Counsel for the revisionist that no plaintiff can be compelled to make party a person who has no interest in the property and who is neither necessary nor proper party. If a Court passes such an order, it would definitely be illegal and would cause undue delays in disposal of case, expenses and harassment to the plaintiff and the harassment and injury cannot be compensated in terms of money. That being the position, in my opinion, the revision petition deserves to be allowed. In view of the above, the revision petition is allowed and the impugned order dated 25-10-1994 is set aside, with costs. --- *** --- .