JUDGMENT - S.D. GUNDEWAR, J.:---This Civil Revision Application is heard finally at the stage of admission with the consent of both the parties. 2. By the present Civil Revision Application, the applicant has challenged the order dated 10-3-2000 passed by the learned 2nd Joint Civil Judge, Sr. Dn. Nagpur in Special Civil Suit No. 68/2000 filed by the non-applicant No. 4, whereby the learned trial Judge rejected the application (Ex.9) preferred by the applicant under Order 1, Rule 10 of Civil Procedure Code for impleding her as a party defendant in the said suit. 3. In order to understand the points in controversy, it would be necessary to reproduce certain facts :--- The dispute relates to a concern under the name and style as 'Shanti Oil Agency' having its place of business at Javratoli, Tq. Bhiwapur, District Nagpur. The applicant Smt. Geeta wd/o Ashok Mishra instituted a Special Civil Suit No. 672/98 against the non-applicant No. 4 for declaration of her ownership in respect of the aforesaid concern 'Shanti Oil Agency' and also for permanent injunction restraining non-applicant No. 4 from interfering her in the aforesaid business. 4. It was averred by the applicant in the aforesaid suit that her husband late Ashok Mishra was dealing in kerosene under the name and style as 'Shanti Oil Agency'. According to her, initially the Indian Oil Corporation Ltd. had allotted S.K.O./ L.D.O. dealership to her husband in the year 1991. Her husband died on 18-11-1992. After his death, the said dealership has been transferred in her name. The non-applicant No. 4 was on friendly terms with her husband. He used to help her husband in the aforesaid kerosene business. Before his death, her husband had executed some documents in favour of non-applicant No. 4 pertaining to "Shanti Oil Agency" as non-applicant No. 4 was assisting him in the said business. It was further averred by the applicant in the said suit that after the death of her husband, she was unable to look after the said business and, therefore, it was the non-applicant No. 4, who used to look after the same by maintaining accounts and doing other essential work. In the course of time, non-applicant No. 4 obtained her signatures on some papers and got executed a false Power of Attorney claiming that the same has been executed by her in his favour. In the course of time, non-applicant No. 4 obtained her signatures on some papers and got executed a false Power of Attorney claiming that the same has been executed by her in his favour. However, due to happening of certain events in the year 1997-98, she was compelled to revoke the said Power of Attorney by issuing legal notice to non-applicant No. 4 on 26-3-1998 and also by a public notice published in the daily newspapers 'Hitavada' on 28-5-1998. 5. In the aforesaid suit, the applicant had filed an application for temporary injunction under Order 39, Rules 1 2 read with Section 151 of Civil Procedure Code against non-applicant No. 4 restraining him from obstructing, disturbing and interfering her from withdrawing, purchasing and collecting kerosene from Indian Oil Corporation, Khapri Depot, Nagpur, and from doing business in the suit premises in any manner and also for restraining him from signing, acting or doing any other work in the name of 'Shanti Oil Agency' with Indian Oil Corporation or any other authority till the disposal of the suit. 6. The non-applicant No. 4 resisted the application for temporary injunction filed by the applicant in the aforesaid suit by filing his reply. He had denied all the material averments made by the applicant. According to him, the applicant is in no way concerned with the business of 'Shanti Oil Agency'. He contended that at no point of time the applicant did anything in relation to 'Shanti Oil Agency'. According to him, there was a deed of partnership in between him and late Shri Ashok Mishra, which was executed on 10-1-1991. It was also contended by him that he did all that he was required to do as per the terms of the said partnership-deed. He denied that he obtained the signatures of the applicant on some papers and by taking undue advantage of the same got prepared Power of Attorney as alleged. He denied that he was an employee of the applicant and he was paid by the applicant for the work done by him. According to him, he himself made payment to the deceased Ashok Mishra and after his death to the applicant and her parents from time to time, amounting to Rs. 5,84,000/-. According to him, the payment to the applicant and her parents after the death of Ashok Mishra was made on humanitarian ground. 7. According to him, he himself made payment to the deceased Ashok Mishra and after his death to the applicant and her parents from time to time, amounting to Rs. 5,84,000/-. According to him, the payment to the applicant and her parents after the death of Ashok Mishra was made on humanitarian ground. 7. Considering the aforesaid contentions raised by the applicant and non-applicant No. 4 and also having regard to the material that was placed before him, the learned trial Judge had rejected the said application for temporary injunction vide his order dated 7-9-1998. 8. After the aforesaid application for temporary injunction was rejected by the trial Court the applicant filed an application on 24-9-1998 before the learned trial Judge for withdrawal of the aforesaid suit contending that she wanted to settle the matter with the non-applicant No. 4 out of Court. On the basis of the said application, the learned trial Judge allowed the applicant to withdraw the suit and accordingly the said suit came to be disposed of as withdrawn. 9. After the withdrawal of the aforesaid suit and consequent upon a show cause notice issued by the competent authority under the Essential Commodities Act, the licence held by the applicant under the Kerosene Dealers Licensing Order framed under the Essential Commodities Act was suspended. The said suspension came to be revoked by the Tahsildar after the applicant filed a reply in the said matter. Despite the revocation of the suspension of the licence, the Collector, Nagpur, had not fixed the quota of kerosene for being allotted to the applicant and, therefore, the applicant was required to move this Court by filing Writ Petition No. 4741/99. In the said writ petition, the Division Bench of this Court granted ad-interim relief to the applicant directing the Collector, Nagpur, to fix the quota of kerosene for the licence held by the applicant. 10. After the authorities under the Essential Commodities Act treated the applicant as a licensee under the Essential Commodities Act after the death of her husband, the non-applicant No. 4 filed Special Civil Suit No. 68/2000 in the Court of 2nd Joint Civil Judge, Sr. 10. After the authorities under the Essential Commodities Act treated the applicant as a licensee under the Essential Commodities Act after the death of her husband, the non-applicant No. 4 filed Special Civil Suit No. 68/2000 in the Court of 2nd Joint Civil Judge, Sr. Dn., Nagpur , against the non-applicants No. 1 to 3 for declaration that he is the sole proprietor of the business concern, namely, 'Shanti Oil Agency' and also for permanent mandatory injunction directing the non-applicants No. 1 to 3 to supply kerosene to him in his capacity as the proprietor of 'Shanti Oil Agency'. However, in the said suit he has not impleaded the applicant as the party defendant. He has also not impleaded Collector, Nagpur, as a party defendant, though he is an authority under the Kerosene Dealers Licensing Order. The applicant had, therefore, filed an application under Order 1, Rule 10 of Code of Civil Procedure pointing out thereunder that she was a necessary party to the suit and the suit as framed and filed could not be adjudicated upon in the absence of the applicant. Along with the said application, she had filed various documents. The said application was replied by the non-applicant No. 4, wherein it has been inter-alia contended by him that the withdrawal of the earlier suit by the applicant prevented her not only from filing fresh suit but also from setting up a defence to the claim made by the non-applicant No. 4 in the said suit. The non-applicant Nos. 1 to 3 also filed their reply to the said application wherein they have categorically stated that it is the applicant who inherited the dealership after the death of her husband and the non-applicant No. 4 is a stranger to the licence in question. 11. After hearing the parties and considering the evidence on record, the learned trial Judge vide his order dated 10-3-2000 rejected the said application filed by the applicant. It is this order which is under challenge in this Civil Revision Application. 12. While assailing the impugned order, Shri S.P. Dharmadhikari, the learned Counsel for the applicant, vehemently urged before me that the impugned order is ex-facie perverse and suffers from jurisdictional defect and, therefore, it is liable to be set aside. It is this order which is under challenge in this Civil Revision Application. 12. While assailing the impugned order, Shri S.P. Dharmadhikari, the learned Counsel for the applicant, vehemently urged before me that the impugned order is ex-facie perverse and suffers from jurisdictional defect and, therefore, it is liable to be set aside. According to him, the trial Court committed a grave error in observing that the non-applicant No. 4 has not sought any relief against the present applicant in the said suit. In this respect, Shri Dharmadhikari, learned Counsel, submitted that bare reading of the plaint leves no doubt in one's mind that it is essentially an action directed against the present applicant and none else. According to him, the non-applicant No. 4 having claimed a relief in relation to a business of Kerosene under a licence issued under the Essential Commodities Act and held by the present applicant, the applicant was essentially a necessary party to the suit but this aspect was not considered by the trial Court. 13. Shri Dharmadhikari, learned Counsel, further submitted that the second reason for rejection of the application given by the trial Court in its impugned order is that the withdrawal of Civil Suit No. 672/98 by the applicant after the application for temporary injunction was rejected, decides the character of the plaint. According to Shri Dharmadhikari, such an observation made by the learned trial Court has no support in any of the provisions of law. Order 23, Rule 1(4) of Code of Civil Procedure may at the most prevent a litigant from preferring a suit for same relief on the same cause of action if the earlier suit is withdrawn by the litigant. It cannot and does not prevent the litigant from setting up a defence in another suit as is held in (Balwant Singh others v. Union of Indian another)1, reported in A.I.R. 1990 P. H. 26, but the trial Court has not considered this aspect in its proper perspective. 14. According to Shri Dharmadhikari, the third reason for rejection of the application given by the trial Court is that since the applicant did not implead non-applicant No. 4 as a respondent in Writ Petition No. 4749/99, the applicant is neither a necessary nor a proper party to the suit. 14. According to Shri Dharmadhikari, the third reason for rejection of the application given by the trial Court is that since the applicant did not implead non-applicant No. 4 as a respondent in Writ Petition No. 4749/99, the applicant is neither a necessary nor a proper party to the suit. According to Shri Dharmadhikari, the applicant was under no obligation to implead the non-applicant No. 4 as a respondent in the aforesaid writ petition as, according to the applicant, non-applicant No. 4 is a stranger to the licence of the business in question. 15. For all the aforesaid reasons it is submitted by Shri Dharmadhikari, learned Counsel for the applicant that the trial Court committed grave error in rejecting the application filed by the applicant under Order 1, Rule 10 of Code of Civil Procedure and, therefore, the impugned order is liable to be set aside. 16. As against this, Shri M.G. Bhangde, the learned Counsel for the non-applicant No. 4, submitted that the controversy which is sought to be raised by the application (Ex. 9) filed under Order 1, Rule 10 of Code of Civil Procedure has already been answered by the trial Court vide its order passed below application (Ex. 5) in Spl. Civil Suit No. 672/98 and, therefore, the applicant cannot agitate the same points again by filing such application under Order 1, Rule 10 of Code of Civil Procedure. Shri Bhangde also submitted that the plaintiff is a 'dominus litis' and he cannot be compelled to add any party against whom he does not want to claim anything. 17. It is further submitted by Shri Bhangde that the Spl. Civil Suit No. 672/98 filed by the applicant against non-applicant No. 4 was withdrawn by her and, therefore, it is not open to her to file fresh suit in respect of the same subject matter as it is barred under Order 23, Rule 1(4) of Code of Civil Procedure. Consequently, she cannot file an application under Order 1, Rule 10(2) of Code of Civil Procedure also. According to Shri Bhangde, this is nothing but indirect method of canvassing same thing with the aid of Order 1, Rule 10(2) of Code of Civil Procedure, a course of action impermissible in law. Consequently, she cannot file an application under Order 1, Rule 10(2) of Code of Civil Procedure also. According to Shri Bhangde, this is nothing but indirect method of canvassing same thing with the aid of Order 1, Rule 10(2) of Code of Civil Procedure, a course of action impermissible in law. For this, he placed reliance on a decision in (Jayalaxmi Janardhan Walawalkar and others v. Lilchand Laxmichand Kapasi others)2, reported in 1998(4) Bom.C.R. 665 : 1998(3) Mh.L.J. 618 . 18. It is also submitted by Shri Bhangde that the impugned order is neither perverse nor it suffers from jurisdictional defect and the same being just, legal and proper needs to be maintained. For this, he placed reliance on the decisions in (Pandurang Dhondi Chougule others v. Maruti Hari Jadhav others)3, reported in A.I.R. 1996 S.C. 153 and in (M/s. D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh others)4, reported in A.I.R. 1971 S.C. 2324. 19. Shri Bhangde then submitted that the applicant was knowing right from the day one that 'Shanti Oil Agency' was a partnership firm consisting of her late husband Ashok Mishra and non-applicant No. 4 and was duly registered with Registrar of Firms but she has not disclosed the said fact in her application filed under Order 1, Rule 10 of Code of Civil Procedure. According to Shri Bhangde, in case where there are only two partners and one of them expires, in that case the firm is converted by operation of law into a proprietary concern and as such in the case at hand as Ashok Mishra, the husband of the applicant, died on 18-11-1992, the non-applicant No. 4 being the sole partner became the proprietor of the aforesaid firm and, therefore, the question of impleading the applicant as a party defendant in the aforesaid suit filed by him does not arise. 20 It is further submitted by Shri Bhangde that under the partnership agreement Ashok Mishra had agreed to share the profits of the kerosene business in equal shares with non-applicant No. 4. He was, however, not to share any loss and this sharing of profit was also subject to clause 12 of the said agreement. It is submitted by him that in view of the aforesaid agreement the non-applicant No. 4 made payment to Ashok Mishra and after his death to the applicant and her in-laws. He was, however, not to share any loss and this sharing of profit was also subject to clause 12 of the said agreement. It is submitted by him that in view of the aforesaid agreement the non-applicant No. 4 made payment to Ashok Mishra and after his death to the applicant and her in-laws. According to Shri Bhangde, after the death of Ashok Mishra the non-applicant No. 4 was not under obligation to make any payment either to the applicant or her in-laws but he paid the amount as stated above on humanitarian ground. 21. It is also submitted by Shri Bhangde that the applicant had not impleaded the non-applicant No. 4 as a respondent in the Writ Petition No. 4741/99 filed by her, which fact clearly indicates that the applicant is neither necessary nor proper party to the suit and, therefore, the trial Court has rightly rejected the same. 22. On all the aforesaid grounds, Shri Bhangde submitted that the impugned order being just, legal and proper needs no interference by this Court. 23. The question that falls for my determination therefore is, whether the applicant is a proper and necessary party to the Spl. Civil Suit No. 68/2000 filed by non-applicant No. 4? 24. The principles governing the powers of the Court under Order 1, Rule 10 of Code of Civil Procedure are : "As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the "dominus litis". He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. The word 'may' in sub-rule (2) imports a discretion. In exercising that discretion, the courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Under sub-para (2) of Order 1, Rule 10, a person may be added as a party to a suit in two cases only, i.e., when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the question in the suit cannot be completely decided. Under sub-para (2) of Order 1, Rule 10, a person may be added as a party to a suit in two cases only, i.e., when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the question in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. A person may not be added as a defendant merely because he would be incidentally affected by the judgment. The following tests may be formulated usefully as a guidance in the case of adding of parties, under Order 1, Rule 10. Civil P.C. ; (1) If, for the adjudication of the "real controversy" between the parties on record, the presence of a third party is necessary, then he can be impleaded; (2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself; (3) The proposed party must have a defined, subsisting, direct and substantive interest in the litigation which interest is either legal or equitable and which right is cognisable in law; (4) Meticulous care should be taken to avoid the adding of a party when the addition is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which neither necessary or expendient to be considered by the Court in the pending litigation; and (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by courts by adding a new party whose interest has no nexus to the subject-matter of the suit." 25. The facts set out by me in earlier paragraphs and the aforesaid submission made on behalf of both the sides are sufficient to show that there is a dispute between the applicant and non-applicant No. 4 regarding the proprietorship of kerosene business carried out in the name and style as 'Shanti Oil Agency'. The applicant claims that her husband late Ashok Mishra was the proprietor of the said concern and after his death, the licence of the said business has been transferred in her name, while non-applicant No. 4 contends that it was the partnership firm comprising of himself and late Ashok Mishra as partners and after the death of Ashok Mishra he being the sole partner became the proprietor of the said concern. 26. It appears from the record of the case that dealership in kerosene was initially given by Indian Oil Corporation Ltd., to Ashok Mishra, the husband of the applicant, for Bhiwapur and an agreement to that effect was executed by Indian Oil Corporation with the said Ashok Mishra on 24-1-1991, wherein there is a Clause 16(c)(i), which reads as under :--- "16. (c) Except with the previous written consent of the Corporation--- (i) The Dealers shall not enter into any arrangement, contract or understanding whereby the operations of the Dealer hereunder are or may be controlled carried out and/or financed by any other person, firm or company, whether directly or indirectly and whether in whole or in part." From the bare reading of the aforesaid clause, it is abundantly clear that the dealer appointed under the said dealership agreement cannot transfer, assign and/or subject the dealership agreement in favour of any one by whatsoever modalities and dealer is required to carry on the business of dealership personally. According to the applicant, her late husband Ashok Mishra carried on the said business as its proprietor with the help of non-applicant No. 4 and now by taking undue advantage of the situation the non-applicant No. 4 is claiming that he is the proprietor of the said business. 27. Further, it appears from the record that Ashok Mishra died in the year 1992. Thereafter the appellant being his widow applied for the licence. Consequently, licence held by her husband came to be transferred in her name by the concerned authority and, therefore, Indian Oil Corporation is supplying kerosene to her. 28. 27. Further, it appears from the record that Ashok Mishra died in the year 1992. Thereafter the appellant being his widow applied for the licence. Consequently, licence held by her husband came to be transferred in her name by the concerned authority and, therefore, Indian Oil Corporation is supplying kerosene to her. 28. So also it appears from the documents on record that the applicant gave Power of Attorney to non-applicant No. 4 in order to facilitate work of business from him as he was acquainted with the said business. However, due to happening of certain events in the year 1997-98 the applicant was compelled to revoke the said Power of Attorney by issuing legal notice on 26-3-1998 and public notice in daily newspaper 'Hitavada' on 28-5-1998. 29. Further, it appears from the record of the case that after the withdrawal of the suit by the applicant, the licence transferred in her name was suspended. However, the said suspension was revoked by Tahsildar but inspite of that Collector was not fixing quota of kerosene for being allotted to the applicant. The applicant, therefore, filed Writ Petition No. 4741/99 in this Court. In the said writ petition, the Division Bench of this Court directed the Collector to fix the quota of kerosene for the licence held by the applicant and accordingly the Collector fixed the quota and informed Indian Oil Corporation accordingly for releasing kerosene in favour of the applicant. 30. It is no doubt true that the applicant had withdrawn Spl. Civil Suit No. 672/98 and, therefore, as per the provisions of Order 23, Rule 1(4) of Code of Civil Procedure she is precluded from instituting a fresh suit in respect of the same subject matter. However, it does not prevent her from setting up a defence in another suit because what the rule bars is the remedy and not the right or title of the party to a particular property. Similar view has been taken by Punjab Haryana High Court in Balwant Singh others v. Union of India another reported in A.I.R. 1990 P H 26. (cited supra). 31. Similar view has been taken by Punjab Haryana High Court in Balwant Singh others v. Union of India another reported in A.I.R. 1990 P H 26. (cited supra). 31. Order 1, Rule 10, Code of Civil Procedure, enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 32. In (Khemchand Shankar Choudhary v. Vishnu Hari Patil)5, reported in 1983(2) Bom.C.R. 294 (S.C.) the Apex Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceeding. The Court has taken note of the provisions of section 52 of Transfer of Property Act as well as provisions of Rule 10 of Order 22, Code of Civil Procedure, and then held as : "It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard...." 33. In (Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay)6, reported in 1992(3) Bom.C.R. 110 : 1992(2) S.C.C. 524 the Apex Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. 34. In view of all the aforesaid facts, in my opinion, the impleadment of applicant as a party defendant to the Special Civil Suit No. 68/2000 was warranted. The impugned order, therefore, needs to be quashed and set aside. 35. In the result, the civil revision application is allowed. 34. In view of all the aforesaid facts, in my opinion, the impleadment of applicant as a party defendant to the Special Civil Suit No. 68/2000 was warranted. The impugned order, therefore, needs to be quashed and set aside. 35. In the result, the civil revision application is allowed. The impugned order dated 10-3-2000 passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, in Special Civil Suit No. 68/2000 is hereby quashed and set aside. The application (Ex. 9) filed by the applicant under Order 1, Rule 10(2) of Code of Civil Procedure for impleading her as a party defendant in Special Civil Suit No. 68/2000 is allowed and non-applicant No. 4 is hereby directed to implead the applicant as party defendant in Special Civil Suit No. 68/2000. No order as to costs. Civil Revision Application allowed. -----