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2018 DIGILAW 856 (ORI)

Ramesh Chandra Sahoo v. Ranjit Kumar Singh

2018-12-19

A.K.RATH

body2018
JUDGMENT Dr. A.K. RATH, J. - This petition challenges the order dated 25.7.2016 passed by the learned Civil Judge (Sr. Divn.), Rourkela in C.S. No.195 of 2011, whereby and whereunder learned trial court rejected the application of the plaintiffs filed under Order 1 Rule 10 C.P.C. to implead Sobha Singh, wife of Ranjit Kumar Singh, as defendant no.2. 02. The plaintiffs-petitioners instituted the suit for permanent injunction and recovery of possession impleading the opposite party no.1 as defendant. Pursuant to issuance of summons, the defendant entered contest and filed a written statement stating inter alia that the land has been mutated in the name of Harminder Singh in Case No.1222 of 2001 by the Settlement Officer. Out of the suit land, one Achintya Sen sold a piece of land measuring an area Ac.0.030 dec. to Smt. Sobha Singh, wife of Ranjit Kumar Singh, defendant, by means of a registered sale deed of the year 2010 and delivered possession. She has constructed a house and resided thereon. While the matter stood thus, the plaintiffs filed an application under Order 1 Rule 10 C.P.C. to implead Sobha Singh, wife of the defendant, as defendant no.2. The defendant filed objection to the same. Learned trial court came to hold that the written statement was filed in the year 2011 and the petition for impleadment was filed on 4.7.2016, i.e., after five years. It is the discretion of the court to implead the parties. Held so, it rejected the said petition. 03. Mr. A.P. Bose, learned Advocate for the petitioners, submits that a part of the suit land has been alienated to Sobha Singh, wife of the defendant. The said fact came to the knowledge of the plaintiffs after the written statement was filed. The hearing of the suit has not begun. The intervenor is a necessary party to the suit. 04. Per contra, Mr. S. Udgata, learned Advocate for the opposite parties, submits that the written statement filed in the year 2011. But then, the petition for impleadment was filed after gap of five years. The intervenor is neither necessary nor property party to the suit. To buttress the submission, he places reliance on the decision of the apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, AIR 2010 SC 3109 . 05. The intervenor is neither necessary nor property party to the suit. To buttress the submission, he places reliance on the decision of the apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, AIR 2010 SC 3109 . 05. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 06. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 07. In Mumbai International Airport Private (supra), the apex Court held : “12. Let us consider the scope and ambit of Order I of Rule 10(2), CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import, 1981 (1) SCC 80 , reiterated the classic definition of ‘discretion’ by Lord Mansfield in R. vs. Wilkes - 1770 (98) ER 327, that ‘discretion’ when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular’. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule. 12.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 12.2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant-inpossession, then the tenant will be a necessary party in so far as the prayer for actual possession. 12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 12.4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if ‘D’ claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of ‘P’ representing that he is the co-owner with half share, and ‘P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that ‘D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendordefendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.” There is no quarrel over the proposition of law. 08. Reverting to the facts of the case and keeping in view the law laid down by the apex Court, this Court finds that a part of the suit scheduled land has been alienated to Sobha Singh, wife of the defendant. In view of the same, the interevenor is a necessary party to the suit. Learned trial court has not discussed as to whether the interevenor is a necessary or proper party to the suit. 09. In the ultimate analysis, the impugned order is quashed. The petition is allowed. No costs. Learned trial court shall frame an appropriate issue pertaining to limitation. Petition allowed.