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2014 DIGILAW 3397 (ALL)

Gopal Gupta v. Kajal Nigam

2014-11-13

ANIL KUMAR

body2014
JUDGMENT : Anil Kumar, J. Heard Shri Shiv Shanker Lal, learned counsel for the revisionist, Shri Pankaj Verma, learned counsel for the respondents and perused the record. 2. Facts in brief of the present case are that revisionist/plaintiff filed a suit for mandatory injunction against the respondent nos.2/Sanjai Nigam and 3/Smt. Suuneeta Nigam registered as Civil Suit No.182 of 2013. In the said matter, an application has been moved on behalf of Smt. Kajal Nigam, sister of defendant Sanjai Nigam on the ground that she has got share in the property in dispute, as such, impleaded as a party in the litigation, allowed by order dated 22.01.2014 passed by Civil Judge (S.D.), Sitapur. 3. Aggrieved by the said order, the present revision has been filed under Section 151 C.P.C. 4. I have heard learned counsel for the parties and going through the records. 5. In order to decide the controversy, it will be appropriate to go through the scope and object of Order 1 Rule 10(2) CPC which covers two types of cases : (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. 6. The former is called a necessary party and the latter a proper party. Sub-Rule (2) of Order 1, Rule 10 , therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. 7. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications. 8. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications. 8. Order 1, Rule 10 (2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and where the impleadment of the said party is necessary and vital for the decision of the suit. It is true that the discretion has to be exercised judicially but at the same time the concerned civil or appellate court where the suit on appeal is pending has also to take into consideration that the party which is necessary to be impleaded will be put to a greater difficulty if not impleaded by the plaintiff who may have ulterior motives of not impleading such party and if the decision is given which may affect the interest of the said party greater prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff because he will have full opportunity to defend his rights and interest as against aggrieved party who has been impleaded as a party to the suit. The important aspect which should be looked into by the Civil Courts while deciding the applications under Order 1, Rule 10 (2), C.P. C is to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded as a result of allowing necessary party to be impleaded in the suit (See Baijnath v. Ganga Devi A.I.R. 1998 Raj. 125). 9. The expression "to settle all questions involved" used in Order 1, R.10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof. 10. 125). 9. The expression "to settle all questions involved" used in Order 1, R.10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof. 10. The Parliament in its wisdom while framing this rule must be held to have thought that all the material questions common to the parties to the suit and to the third parties should be tried once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties (See Abdul Jaleel v. Aishabi A.I.R. 1992 Karn. 380 : (1992) 2 Karn. L.J. 277). 11. The word "At any stage" in Order 1 Rule 10 (2) CPC means that there is no requirement of law that an application for addition of a party as defendant must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision (See Gurmauj Saran v. Joyce C. Salim A.I.R. 1990 Del. 13 (D.B.). 12. The use of the expression "at any stage of proceedings" in Order 1, R 10(2) shows that the power vested in the Court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party (See Sardar Ali Khan v. Special Deputy Collector A.I.R. 1973 Andh. Pra. 298 (D.B.). 13. Thus, under Order 1 Rule 10(2) C.P.C., the power to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. But the question to be considered whether the right of the said person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. 14. In this regard Hon'ble the Apex Court in the case of Savitri Devi v. District Judge, Gorakhpur, 1999 (2) SCC 577 , after considering the provisions of Order 1 Rule 10 CPC and the other law on the point in issue, namely, Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18 , Ramesh Hirachand Kundanmal v. Municipal Corpn. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18 , Ramesh Hirachand Kundanmal v. Municipal Corpn. Of Greater Bombay, 1992 (2) SCC 524 held as under:- "Order I, Rule 10 C.P.C. 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. 10. In Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., [1983] 1 SCR 898 this 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 proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 Order 22 C.P.C. The Court said: ...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.... 11. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors., [1992] 2 SCR 1 this 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. The Court said: "The case really turns on the true construction of the rule in particular the meaning of the words "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 said: "The case really turns on the true construction of the rule in particular the meaning of the words "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 is empowered to Join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. The Court also observed that though prevention of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum v. Anwar Begum, [1959] 1 SCR 1111 that the person concerned must be having a direct interest in the action was reiterated by the Bench." 15. In the case of Vidur Impex and traders Private Limited and others v. Tosh Apartments Private Limited and others, 2012 (8) SCC 384 , Hon'ble the Supreme Court after considering the various law on the in under consideration and after placing reliance on the judgment of Vinod Seth v. Devinder Bajaj, 2010 (8) SCC 1 and Bibi Zubaida Khatoon v. Nabi Hassan Saheb, 2004 (1) SCC 191 has held in para No. 41 quted herein below:- "41.Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: "41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment." 16. Thus, in view of the above said facts, I do not find any jurisdictional error in the impugned order under challenged in the present revision. 17. For the foregoing reasons, the present revision lacks merit and is accordingly dismissed. Revision Dismissed.