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2004 DIGILAW 528 (GAU)

Pishu Vaswani v. Kishan Chand Vaswami

2004-09-21

I.A.ANSARI

body2004
Judgment : I.A. Ansari, J. 1. The petitioner herein, namely, Smt. Radha K Vaswani, instituted, as plaintiff, Title Suit No. 5(H) 2001 against the opposite party Nos. 1 to 5 herein, as defendants, in the Court of the Assistant District Judge, Shillong, for, inter alia, declaration, partition and other consequential reliefs in respect of the properties mentioned in the Schedules to the plaint. The properties, in respect of which the reliefs were so sought for, included the landed property mentioned in Schedule 'D' to the plaint, which stands, admittedly, in the name of opposite party No. 6, namely, Smt. Radha K Vaswani. The opposite party No. 6 was, however, not made a party to the suit. On realising this error, the petitioner herein, as plaintiff, made, under Order 1, Sub-rule (2) and Sub-rule (4) of Rule 10 thereof read with section 151 of the Code of Civil Procedure, an application praying for allowing him to implead opposite party No. 6 herein, as defendant, in the suit as well as in the miscellaneous cases arising therefrom, namely, learned senior counsel. Case No. 3(H) of 2001 and Misc. Case No. 5(H)of 2001, on the ground that the opposite party No. 6 was a necessary party to the suit. In his said petition, the petitioner, however, mentioned that even if the opposite party No. 6 was not impleaded as a defendant to the said suit, the suit was not likely to fail or be defeated. The learned Court below, after giving notice of the said petition to the opposite party No. 6 (who was sought to be impleaded as a defendant) and also to the parties, who already stood impleaded as defendants, heard the said petition and passed an order, on 17.06.2002, rejecting the prayer of the plaintiff-petitioner and refused to allow thereby the opposite party No. 6 to be impleaded as a defendant to the suit. Aggrieved by this order, the plaintiff has, now, impugned the order, dated 17.06.2002, aforementioned in the present revision. 2. I have heard Mr. D.K. Mishra, learned senior counsel, assisted by Mrs. P.D.B. Baruah, learned counsel, for the petitioner, Mr. S.P. Mahanta, learned counsel for the opposite party Nos. 1 to 5 and Mr. B. Bhattacharjee, learned counsel for the opposite party No. 6. 3. 2. I have heard Mr. D.K. Mishra, learned senior counsel, assisted by Mrs. P.D.B. Baruah, learned counsel, for the petitioner, Mr. S.P. Mahanta, learned counsel for the opposite party Nos. 1 to 5 and Mr. B. Bhattacharjee, learned counsel for the opposite party No. 6. 3. It is trite that if an effective decree cannot be passed in the absence of a particular party against whom a right to obtain some relief in respect of the subject-matter involved in a suit exists, such a party shall be regarded as a necessary party. Reference may be made, in this regard, to Deputy Commissioner, Hardoi v. Rama Krishan Narain AIR 1953 SC 521 , wherein the Apex Court has, while referring to a decision of Allahabad High Court, laid down as to who can be regarded as a necessary party in a civil suit. The relevant observations of the Apex Court are as follows: ... The majority judgment was delivered by Pathak, J. He enunciated two tests for deciding whether certain person was a necessary party in a proceeding, (1) that there must be a right to some relief against such a party in respect of the matter involved in the proceedings, in question, and (2) that it should not be possible to pass an effective decree in the absence of such a party .... There can be no question that these are the true tests for determining whether a person is a necessary party to certain proceeding.... 4. Thus, in Rama Krishna Narain (supra), two tests have been laid down for determining the question as to who can be regarded as a necessary party in a civil suit, the tests being (i) that there must be a right to some relief against such a party in respect of the matter involved in the suit or the proceedings, in question, and (ii) that it should not be possible to pass an effective decree in the absence of such party. 5. 5. Bearing in mind the principle of law, indicated hereinabove, as to who can be regarded as a necessary party to a suit or proceeding, when I turn to the facts of the case at hand, I find that it is the admitted case of the parties that the plaintiff-petitioner has instituted the suit seeking declaration of title, partition and other consequential reliefs in respect of the suit properties, which include the property mentioned in the schedule 'D' to the plaint, which, admittedly, stands in the name of Smti. Radha K. Vaswani, that is, the opposite party No. 6 herein, who was sought to be impleaded by the plaintiff-petitioner as defendant No. 6 in the suit. 6. In view of the fact that the plaintiff-petitioner, in effect, claimed, in the suit, that a right to obtain relief in respect of the property of Schedule 'D' to the plaint, which stands in the name of opposite party No. 6, exists and no effective decree can be, admittedly, passed in the suit without making the opposite party No. 6 was a party to the suit, the opposite party No. 6 is, undoubtedly, a necessary party to the suit, for, in her absence, the suit, even if decreed in favour of the plaintiff-petitioner, declaring his title and right to obtain partition in respect of the property, described in Schedule 'D' to the plaint, such a decree would not be enforceable or acceptable against the opposite party No. 6 and would, thus, remain a paper decree incapable of complete and effective execution. 7. To a pointed query made by this Court from Mr. B. Bhattacharjee, learned senior counsel for the opposite party No. 6 (who opposes the plaintiff-petitioner's prayer for allowing him to implead the opposite party No. 6 would be adversely affected if the decree, as sought for, is granted in favour of the plaintiff-petitioner without impleading the opposite party No. 6 as a party to the suit, Mr. Bhattacharjee candidly conceded that if the decree is passed in the suit in respect of the property of Schedule 'D', which stands in the name of opposite party No. 6, such a decree would, indeed, adversely affect the interest of the opposite party No. 6 and would be inexecutable. Situated, thus, it becomes more than transparent that opposite party No. 6 is a necessary party to the suit. 8. Situated, thus, it becomes more than transparent that opposite party No. 6 is a necessary party to the suit. 8. Coupled with the above, it is of immense importance to note that in its impugned order, the learned Court below has not observed to the effect that the opposite party No. 6 is not a necessary party to the suit. Thus, without determining as to whether the opposite party No. 6 is or is not a necessary party to the suit, the learned Court below rejected the prayer made by the plaintiff-petitioner for impleading the opposite party No. 6 as a defendant in the suit on the mere ground that the plaintiff-petitioner has, in his petition, stated to the effect that the suit was not likely to fail or be defeated even if the opposite party No. 6 was not made a party to the suit. 9. While considering the above aspects of the matter, it is imperative to note that Order 1, Rule 10, which deals with impleading of parties as well as striking out of the name of any person as a party, reads as follows: 10. Suit in name of wrong plaintiff. - (1) where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties. - 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, and that 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, be added. (3) No person shall be added as plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended. - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877) Section 22(2), the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 10. A careful reading of Sub-rule (2) of Rule 10 of order 1 will show that the decision to implead or not to implead a party to the suit or proceeding has to be, primarily, of the Court and this decision can be reached by the Court on the application of either party to the suit or on its own motion. In other words, whether a person has to be impleaded as a party or whether a person has to be removed from a suit or proceeding as a party does not entirely depend upon what the parties claim, but will depend upon what the Court considers to be necessary and correct. If, in the opinion of the Court, a party is a necessary to a suit, the plaintiff has to be directed to implead such a party. If, despite such a direction, the person is not made a party to the suit, the suit may be dismissed, but without giving an opportunity to the plaintiff to implead a person as a party, whom the Court considers as a party for decision in the suit, the suit cannot be dismissed. It is only when a plaintiff, despite having been given opportunity to implead a party as a necessary party to the suit, fails to do so, that the suit may fail or be dismissed. Similarly, when the Court finds that a party impleaded in the suit is not a necessary or proper party, the Court may direct that the name of the party be struck out. Similarly, when the Court finds that a party impleaded in the suit is not a necessary or proper party, the Court may direct that the name of the party be struck out. This decision can be taken by the Court on the application of either party to the suit or on its own motion. Before, however, taking the decision to implead or to strike out the name of any party, the Court must accord an opportunity of hearing to the plaintiff as well as the defendant if the defendant has already entered appearance in the suit. When a Court decides to add a party as a defendant to the suit, it must, in the light of the provisions under Sub-rule (4) of Rule 10 of Order 1, direct the suit to be amended accordingly. 11. Reverting to the case at hand, what becomes glaringly noticeable to the eyes is, as already mentioned hereinabove, that the learned Court below did not clearly determine as to whether the opposite party No. 6 was or was not a necessary party ; it merely rejected the plaintiff's prayer for impleading the opposite party No. 6 as a party to the suit on the ground that while seeking to get the opposite party No. 6 impleaded as a defendant to the suit, the plaintiff-petitioner had at the same time, stated that the suit was not likely to fail or be defeated if the opposite party No. 6 was not impleaded as a party. This approach of the Court was entirely incorrect inasmuch as when it was brought to the notice of the Court, that the opposite party No. 6 was a necessary party to the suit, it was, primarily, the duty of the Court to decide as to whether the opposite party No. 6 needed to be added as a party or not and the plaintiff's prayer could not have been rejected merely on the ground that the plaintiff-petitioner had stated that the suit was not likely to fail or be defeated. The prayer to implead opposite party No. 6 as a party to the suit could have been rejected only if the learned Court below would have formed the opinion that opposite party No. 6, in the face of the pleadings on record and the reliefs sought for, was not a necessary party. The approach of the learned trial Court was, thus, entirely erroneous. The approach of the learned trial Court was, thus, entirely erroneous. 12. In other words, once it is clear from a bare reading of Sub-rule (2) of Rule 10 of Order 1 that the Court can, on its own motion, implead a person as a party to the suit, it logically follows that when the plaintiff-petitioner had clearly stated, in his petition, that opposite party No. 6 was a necessary party to the suit, the facts of the case and the reliefs sought for therein also indicated that the opposite party No. 6 was a necessary party to the plaint, the plaintiff-petitioner's prayer for impleading the opposite party No. 6 as party to the suit could not have been rejected by taking recourse to the plaintiff's pleadings that the suit was not likely to fail or be defeated if the opposite party No. 6 was not made a party to the suit. When the discretion has been vested by the Code of Civil Procedure in the Court to decide, even on its own motion, whether or not a party is a necessary party to the suit, the Court cannot determine this question by merely placing reliance on the ground that the plaintiff or the defendant has pleaded to the effect that the suit is not likely to fail or be defeated in the absence of the party concerned; it is, basically, for the Court to determine whether the suit would fail or not if the party concerned is not impleaded as a party. This question, though raised, was not answered by the learned trial Court on a misconceived notion that since the plaintiff-petitioner had himself stated that the suit was not likely to fail or be defeated in the absence of the opposite party No. 6, the opposite party No. 6 was not a necessary party to the suit. 13. This question, though raised, was not answered by the learned trial Court on a misconceived notion that since the plaintiff-petitioner had himself stated that the suit was not likely to fail or be defeated in the absence of the opposite party No. 6, the opposite party No. 6 was not a necessary party to the suit. 13. For what have been pointed out above, the learned trial Court below failed to exercise the jurisdiction vested in it by Sub-rule (2) of Rule 10 of order 1, though the present one was a fit case in which the opposite party No. 6 ought to have been allowed to be impleaded as a necessary party in the suit ignoring the assertion of the plaintiff that the suit was not likely to fail or be defeated in the absence of the opposite party No. 6 as a defendant to the suit. Had the learned Court below passed an order directing inclusion of the opposite party No. 6 as a defendant in the suit and yet the plaintiff-petitioner had failed to do so, the learned Court below could have rejected the plaint or dismissed the suit. 14. What crystallises from the above discussion is that the learned Court below has failed to exercise the jurisdiction vested in it by law under Sub-rule (4) of Rule 10 of order 1 and if such an order is allowed to stand good on record, no effective decree in the suit can be passed. Considered thus, this Court is of the firm view that the impugned order must be interfered with and suitable directions be passed. 15. In the result and for the reasons discussed above, this revision succeeds. The impugned order is hereby set aside and the learned Court below is hereby directed to pass necessary order or orders for impleading the opposite party No. 6 as a defendant to the suit and for amending, the plaint accordingly. 16. With the above observations and directions, this revision shall stand disposed of. 17. No order as to costs. 18. Send back the LCRs.