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2004 DIGILAW 102 (CAL)

RABI RANI BASU v. NARESH GOPE ALIAS GHOSH

2004-02-13

ARUN KUMAR

body2004
ARUN KUMAR, J. ( 1 ) THE hearing stems from an application filed by the petitioner/plaintiff praying for revision of the order being No. 160 dated 17. 2. 99 passed by the learned Civil Judge (Sr. Div.), Kalna in T. S. No. 35/1999 rejecting the application under Order 1 Rule 10 C. P. Code. ( 2 ) THE circumstances leading to the present application are that the present petitioner/plaintiff brought T. S. No. 35/91 in the Court of learned assistant District Judge (now Civil Judge (Sr. Div.), Kalna for declaration of title and injunction, alternatively for partition of his 5/7th share of the disputed property. On 23. 12. 98 he sought to implead a few persons in the category of defendants as during pendency of the said suit they became owners of the share of the property of the present O. P. /defendant due to their winning the proceeding under the Restoration of Alienated Land Act, against the defendant which was rejected by the impugned order. Being aggrieved by and dissatisfied with the said order, the petitioner/plaintiff has moved this Court in revision. ( 3 ) ALL that now requires to be considered is whether the learned Court below was justified in passing the said order. ( 4 ) SINCE none appeared on behalf of the O. P. /defendant, the application was heard ex-parte. ( 5 ) LEARNED Counsel for the petitioner advanced argument contending that as the persons who were sought to be impleaded became owners of the defendant's share of the property due to their winning the proceeding under the Restoration of Alienated Land Act, they are necessary parties and in their presence the suit should be disposed of so as to avoid multiplicity of proceedings. ( 6 ) NOW, a "necessary party" is one whose presence is essential and in whose absence no effective decree can at all be passed, whereas a "proper party" is one whose presence is a matter of convenience to enable the Court to adjudicate more effectively and completely. ( 6 ) NOW, a "necessary party" is one whose presence is essential and in whose absence no effective decree can at all be passed, whereas a "proper party" is one whose presence is a matter of convenience to enable the Court to adjudicate more effectively and completely. There are certain established principles governing the cases of addition of parties viz (1) if for adjudication of the "real controversy" between the parties on record, the presence of a third party is necessary, then he can be impleaded, (2) 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 suit over a subject matter which could still have been decided in the pending suit itself and (3) the proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognisable in law. But a person who would be only indirectly or commercially affected by the result of a litigation cannot be impleaded as a party as a person having a direct interest in the subject matter in dispute. Where there is a dispute between two parties over title of the property, presence of a third party is not necessary. That apart, under sub-section (2) of Section 5 of the West bengal Restoration of Alienated Land Act, from the first day of Baisakh next following the date of order, the right, title and interest of the land, subject to appeal, automatically vests in the transferer and delivery of possession is to be enforced following the procedure. So, merely because an order of restoration was passed in favour of those persons who were sought to be impleaded, they do not become owners and possessors immediately unless the aforesaid conditions are fulfilled. The object of Rule 10 (2) is not to prevent multiplicity of actions though it may incidentally have that effect. But, that is a desirable consequence of the rule rather than its main objective. The object of Rule 10 (2) is not to prevent multiplicity of actions though it may incidentally have that effect. But, that is a desirable consequence of the rule rather than its main objective. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party ( 1992 (2) SCR 1 ). Moreover, where are impleadment of a person would change the complex of the litigation, his/her presence is neither necessary for the decision of the question involved in the proceedings nor to enable the Court to effectively and completely adjudicate upon and settle the question involved in the case, such a person is neither a necessary nor a proper party (AIR 2000 SC 2061 ). In the present case, if the petitioner's prayer for impleadment is allowed, the entire complex of the suit will be changed since it will have the effect of ousting the defendant from the suit as the defendant and those persons cannot be said to have title over the self-same property simultaneously. ( 7 ) SO, viewed in the light of the above discussion, those persons who were sought to be impleaded as defendants cannot be held either necessary or proper parties in the above suit at this stage. ( 8 ) IN the premises, there being no material to interfere with the impugned order, the present revisional application be dismissed ex-parte. The impugned order being No. 160 dated 17. 2. 99 passed by the learned court below is hereby affirmed. ( 9 ) ORDER of stay, if any, stands vacated. Let a copy of this order along with the L. C. R. be sent down to the learned Court below at once. .