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2017 DIGILAW 844 (MP)

NITIN SIRBHAIYA v. DIVYA BADHWANI

2017-07-20

S.A.DHARMADHIKARI

body2017
ORDER : S.A. Dharmadhikari, J. With the consent of learned counsel for the rival parties, the matter is heard finally. 2. In this petition under Article 227 of Constitution of India, the petitioner is aggrieved by impugned order dated 09/09/2014, whereby, the application under Order 1, Rule 10 of the Code of Civil Procedure (herein after referred to as 'CPC') for impleading him in the suit for eviction from portion of house which has been rented out, recovery of arrears of rent and damages has been rejected by 3rd Civil Judge, Class-II, Vidisha. 3. The brief facts leading to filing of this petition are that the respondents No. 1 & 2/plaintiffs have filed a suit against the respondent No. 3 for eviction from portion of house which has been rented out, recovery of arrears of rent and damages. The petitioner herein is admittedly not a party in the suit. He filed an application under Order 1, Rule 10 of CPC to get himself added in the suit as defendant on the ground that he is in possession of the suit premises for more than 40-50 years. Considering the long possession of Dinesh Sirbhaiya father of the present petitioner, the owner of the house namely Heera S/o Shri Mishrilal gifted the house to Dinesh Sirbhaiya. This fact was acknowledged by executing Panchnama in the year 1995 by Mohanlal S/o Shri Sorumal Chhugani. Inspite of having knowledge of the said fact, the plaintiffs purchased the house without taking possession and deliberately did not implead the petitioner as party to the present suit who is necessary party. No reply was filed by the plaintiffs/respondents No. 1 & 2 in rebuttal of the said application. 4. Learned counsel for the petitioner contended that even though the petitioner is a stranger to the suit, but looking to the fact that he is in possession of the suit premises for a period of 40-50 years, he is a necessary party in the suit. It is further submitted that in the event the suit is decreed then he would have to suffer irreparable loss. The trial court has heavily erred in rejecting the application under Order 1, Rule 10 of CPC without considering the merit of the case and without passing a speaking order, therefore, the instant petition deserves to be allowed. 5. It is further submitted that in the event the suit is decreed then he would have to suffer irreparable loss. The trial court has heavily erred in rejecting the application under Order 1, Rule 10 of CPC without considering the merit of the case and without passing a speaking order, therefore, the instant petition deserves to be allowed. 5. On the other hand, learned counsel for the respondents submitted that the petitioner has no right to claim any relief in respect of controversy involved in the proceedings and no effective decree can be passed against or in favour of the petitioner. The plaintiffs being dominus litus cannot be forced to add party against whom no relief has been claimed. The trial court is absolutely right in rejecting the application under Order 1, Rule 10 of CPC as such the petition deserves to be dismissed. 6. In order to decide the question as to whether in a suit for eviction, arrears of rent and damages, a stranger or a third party claiming to be in possession over the suit property is entitled to be added as a party/defendant in the said suit, it is necessary to consider the relevant provisions of Code of Civil Procedure under which the Court is empowered to add a party in the suit. So far as addition of the party under CPC is concerned, the power to add a party emanates under Order 1, Rule 10 of CPC. It would be appropriate to refer to the aforesaid provision, which reads as under :- "10. Suit in the 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 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). (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 effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a 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 this Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." 7. The present case does not relate to striking out the name of plaintiff or defendant who have been properly joined in the suit. It would be apposite to consider the sub section 2 of Order 1, Rule 10 of CPC, which empowers the Court to add a person who ought to have been joined or whose presence before the court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. There are two tests which are to be satisfied for determining who is a necessary party. (1) There must be a right to some relief against such party in respect of controversy involved in the proceedings. (2) No effective decree can be passed in absence of such party. Thus two tests are required to be satisfied to determine the question who is a necessary party. (1) There must be a right to some relief against such party in respect of controversy involved in the proceedings. (2) No effective decree can be passed in absence of such party. Thus two tests are required to be satisfied to determine the question who is a necessary party. If the person seeking addition is added in such suit, the scope of the suit cannot be enlarged and it would be practically converted into a suit for title, therefore, for effective adjudication of the controversy involved in the suit presence of such party cannot be said to be necessary. From the above discussion, it is clear as a day light that "necessary party" are those person in whose absence no decree can be passed by the Court and there must be a right to some relief against such party in respect of controversy involved in the proceedings and "proper party" are those whose presence is necessary before the court effectively and completely to adjudicate upon and settle all the questions involved in the suit against such person. Keeping the above principle in mind, it is to be considered on the basis of admitted facts of this case whether the petitioner herein who is a stranger to the suit is "necessary party" or a "proper party". Thus, the petitioner is not a necessary party since an effective decree could be passed in his absence as he has not purchased the suit property from the plaintiffs nor is a tenant of the plaintiffs' house. 8. The Apex Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Ors. reported in 2010 (7) SCC 417 has observed as follows :- A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made." 9. That apart, there is another principle which cannot be forgotten. That apart, there is another principle which cannot be forgotten. The respondents No. 1 & 2/plaintiffs who have filed the suit are dominus litus, cannot be forced to add party against whom they do not want to get any relief, unless it is a rule of law, as already discussed above. 10. The trial court has rightly held that a person can be impleaded as a party where it is necessary to determine the dispute and to pass effective decree, but such requirement is not necessary where their presence is not required to be necessary. Moreover, the plaintiffs being dominus litus, they cannot be compelled to add a stranger to the suit as a party defendant. The trial court has not committed any jurisdictional error so as to warrant interference by this Court under Article 227 of the Constitution of India. 11. In view of the aforesaid, in the considered opinion of this Court, a stranger to the suit making his claim independently and adverse to the title of the plaintiff, is neither "necessary party" nor is "proper party", therefore, the petitioner is not entitled to join as party defendant in the suit. 12. Accordingly, the writ petition being bereft of merit and substance, deserves to be and is hereby dismissed. However, it is made clear that this Court has not decided in this writ petition, the title and possession of the petitioner herein with regard to the suit property and all such questions are kept open in the event either of the parties approach before the competent court in this regard. 13. There shall be no order as to costs.