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2013 DIGILAW 1299 (MP)

Vinti Solanki v. Anil Kumar

2013-10-28

U.C.MAHESHWARI

body2013
Judgment: U.C. Maheshwari, J.;- 1. He is heard on the question of admission. The petitioner-applicant has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 2.9.2013, (Ann. P-6), passed by the IVth Additional District Judge, East Niwar Khandwa in COS No. 10-A/2013, whereby her application filed under Order 1, Rule 10 of CPC in the impugned suit, filed by the respondent no. 1 against the respondent no. 2 by impleading the State of M.P. as respondent no. 3 as formal party for specific performance, permitting her to join as defendant has been dismissed. 2. The petitioner's counsel after taking me through the averments as well as paper placed on record and impugned order, argued that the property in dispute was initially the property of her father and father of respondent no. 2 and after demise of father contrary to the right of the petitioner, the same was got mutated by the respondent no. 2 in his own name and subsequent to that as alleged he has entered in agreement to sale the same with the respondent no. 1 and on arising the dispute in performance of such agreement between them, the respondent no. 1 has filed the impugned suit against the respondent no. 2 by impleading the State of M.P. as formal party for specific performance. In pendency of the suit, the petitioner in order to protect her interest in the property has filed the impugned application under Order 1, Rule 10 of CPC with prayer to implead her as defendant in the matter. In continuation, he said that if the petitioner is not permitted to join the impugned suit and if any decree is passed against the respondent no. 2, then his right vested in the property shall be affected and she would be deprived from her right in such property. He further said that in view of provision of Section 19(b) of the Specific Relief Act 1963, if any decree is passed in the impugned suit in favour of the respondent no. 1, then that shall affect the right of the petitioner. Thus, in such premises, she is necessary party in the matter and prayed for setting aside the impugned order by allowing her application by admitting and allowing this petition. 1, then that shall affect the right of the petitioner. Thus, in such premises, she is necessary party in the matter and prayed for setting aside the impugned order by allowing her application by admitting and allowing this petition. He also placed his reliance of the Apex Court on a decision in the matter of Sumtibai and others Vs. Paras Finance Col. Regd. Partnership Firm reported in AIR 2007 SCW 6125 . 3. Having heard the counsel at length, keeping in view the arguments advanced, I have carefully gone through the papers placed on record including the plaint, (Ann. P-1) and the petitioner's application, (Ann. P-4), its reply filed on behalf of respondent no. 1 so also the impugned order. 4. Before proceeding further to consider the question of admission of this petition on the factual matrix of the matter, I would like to examine the matter in the light of settled principle on the question of sole dominus litus. It is settled principle of law that the plaintiff like the respondent no. 1 is sole dominus litus of his litigation and has a right to implead a party according to his choice and contrary to his wish, he cannot be insisted either by any of the party of the suit or by the court unless compelling circumstances are available in the matter, unless there is any cause of action in the suit against such person to file the application under Order 1, Rule 10 of CPC to implead him/her as party in the matter. 5. It is undisputed fact in the case at hand that the respondent no. 1 has filed a suit for specific performance by impleading respondent no. 2, as defendant no. 1 on the basis of the agreement dated 8.2.2007, which had taken place between him and respondent no. 2. In such premises, the cause of action to file such suit was available only against respondent no. 2. So in such premises, the respondent no. 1 being sole dominus litus of his litigation could not be insisted by the court or by other person to implead the petitioner as defendant in the matter. 2. In such premises, the cause of action to file such suit was available only against respondent no. 2. So in such premises, the respondent no. 1 being sole dominus litus of his litigation could not be insisted by the court or by other person to implead the petitioner as defendant in the matter. If on conclusion of the suit, it is found by the trial court that if the right and interest of present petitioner is also involved in the matter, then on account of non impleadment of necessary party, the suit may be dismissed by such court and in such circumstances, the respondent no. 1 has to face the consequences of the same. So firstly in such premises, the petitioner could not have been permitted by the trial court to permit her to join the impugned suit as defendant. 6. Apart the aforesaid, on perusing the plaint, Annexure P-1, it is apparent that the respondent no. 1 has filed the impugned suit on the basis of alleged agreement to sale dated 8.2.2007, which has been as alleged executed by the respondent no. 2 in favour of respondent no. 1 and the same is not signed in any manner by the present petitioner. Even in the para of cause of action of the plaint, the cause of action is stated to be aforesaid date of the agreement, i.e. 8.2.2007 and 31.7.2008, on which the respondent no. 2 had refused to perform his part of contract and to execute the sale deed. It is apparent that nothing has been stated against the petitioner in the plaint. Even in the prayer clause, no relief has been prayed against the present petitioner. So in such premises, the petitioner does not appear to be either necessary party nor the proper party in the impugned suit of the respondent no. 1 and in such premises, the trial court has not committed any error in dismissing the application of the petitioner. 7. Long before in the matter of Panna and another Vs. Jeewanlal and another reported in 1976 JLJ, 84 the Full Bench of this Court has also answered the question that who is the necessary party in the suit and whose presence as proper party is required in the civil suit. In such case it was held as under:- 5. 7. Long before in the matter of Panna and another Vs. Jeewanlal and another reported in 1976 JLJ, 84 the Full Bench of this Court has also answered the question that who is the necessary party in the suit and whose presence as proper party is required in the civil suit. In such case it was held as under:- 5. The forequoted sub-Rule (1) relates to the addition of parties as plaintiffs only and therefore it is not relevant in the instant case. The only relevant provision for answering the question before us is sub rule (2). In the forequoted sub rule (2) the two expressions (i).... who ought to have been joined" and (ii).......whose presence before the Court may be necessary" indicate that there are two categories of parties: (a) necessary party as indicated by the expression "ought to have been joined" and (b) proper party as indicated by the expression "whose presence before the Court may be necessary". The Court has no jurisdiction or power to add a person as a party who is neither a necessary party nor a proper party. We have therefore, to examine whether the application fall in either of these categories. 6..... 7..... 8. The Allahabad High Court in a Full Bench decision in the Banaras Bank Vs. Bhagwandas (2) had laid down the tests for determining the question as to who is a necessary party to a proceeding which were approved by their Lordship of the Supreme Court in Deputy Commissioner Vs. Ram Krishna (3) and these tests are as under:- (i) There must be a right to some relief against such party in respect of the matter involved in the proceedings in question. (ii) It should not be possible to pass an effective decree in the absence of such a party. Thus bearing in mind the aforesaid tests, discussed hereinabove the irresistible conclusion is that the applicants are not the necessary parties for the reason to follow. 8. In the available factual matrix of the matter the aforesaid citation is directly applicable and in such premises also the trial court has not committed any error in passing the impugned order and dismissing the petitioner's application. 9. 8. In the available factual matrix of the matter the aforesaid citation is directly applicable and in such premises also the trial court has not committed any error in passing the impugned order and dismissing the petitioner's application. 9. So far the case law in the matter of Sumtibai (supra) cited by the petitioner's counsel is concerned, in such case some person was already a party in the matter and in pendency of the matter he passed away and thereafter the dispute with respect of his legal representatives had arisen whether such person being legal representatives of deceased party is co-owner of the property or not and in such premises, the case was decided, which is not the situation in the case at hand. So such case is not helping to the petitioner. So far principle laid down in such case is concerned, this court does not have any dispute. 10. In view of aforesaid, I have not found any perversity, illegality, infirmity or anything against propriety of law in the impugned order in dismissing the application of the petitioner filed under Order 1, Rule 10 of CPC. Consequently this petition being devoid of any merits deserves to be and is hereby dismissed at the stage of motion stage. However before parting with the petition, it is made clear that on arising the occasion or on the basis of available cause of action the petitioner under her available rights shall be at liberty to file his separate suit against the respondents and other party in accordance with the procedure prescribed under the law and this order shall not come in the way of the petitioner to file and prosecute such suit. 11. There shall be no order as to cost. The petition dismissed as indicated above.