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2019 DIGILAW 78 (ORI)

Khuswari Begum v. SK. Piru

2019-01-30

A.K.RATH

body2019
JUDGMENT : A.K. RATH, J. 1. By this petition under Article 227 of the Constitution, challenge is made to the order dated 20.07.2018, passed by the learned Civil Judge (Junior Division), Baleswar, in C.S. No.610 of 2018-I whereby and whereunder, the learned trial Court allowed the application of the intervenors under Order 1 Rule 10 CPC for impleadment. 2. Plaintiffs-petitioners instituted the suit for declaration of title and permanent injunction. During pendency of the suit, a compromise was entered into between the plaintiffs and defendant- opposite party no.1. They filed an application to dispose of the suit in terms of compromise. While matter stood thus, the opposite party nos.2 to 5 filed an application under Order 1 Rule 10 CPC for impleadment. It was stated that the defendant was the original owner of the suit land. They are in possession of the suit land on the basis of the oral gift dated 01.01.2005 made by the defendant. They have instituted C.S. No. 1416 of 2017 in the same court, which is subjudice. They have title over the suit property. Since the suit land has been gifted to them by the recorded owner and another suit is pending for trial, they are necessary parties to the suit. 3. The plaintiffs filed their objection denying the assertions made in the petition. It was stated that the defendant was the owner of the suit land. He had gifted the suit land to the plaintiffs orally. The third party petitioners are strangers to the suit land. Their presence is not all required for determining the real controversy between the parties. The third party petitioners have no right to question on the legality of the compromise between the parties. The stand of the defendant is same to the right of the plaintiffs. According to the defendant, he has not gifted the suit land to the third party petitioners. He is the owner of the suit land. The intervenors are strangers to the suit land, and as such their presence is not at all required in the suit. 4. Learned trial court held that oral gift is permissible under Mohammedan law. The intervenors have instituted C.S. No. 1416 of 2017 along with the plaintiffs claiming that Sk. Piru, defendant had orally gifted the suit land in their favour. In the event the present suit is decided in their absence, they will be highly prejudiced. 4. Learned trial court held that oral gift is permissible under Mohammedan law. The intervenors have instituted C.S. No. 1416 of 2017 along with the plaintiffs claiming that Sk. Piru, defendant had orally gifted the suit land in their favour. In the event the present suit is decided in their absence, they will be highly prejudiced. The validity of the gift can be decided in the suit. The presence of the intervenors is necessary for effectual adjudication of lis. 5. Mr. H.S. Deo, learned counsel for the petitioners submits that the intervenors are neither necessary nor proper parties to the suit. The defendant was the real owner of the suit land. He had gifted the land to the plaintiffs orally. Defendant had stated that he had not gifted the suit land in favour of intervenors. Learned trial court is not justified in allowing the application for impleadment. 6. In Razia Begum Vs. 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. 7. The distinction between a necessary party and a proper party is well known. In Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others, (2010) 7 SCC 417 , the apex Court held:- "13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. xxx xxx xxx 14. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. xxx xxx xxx 14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. 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. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. xxx xxx xxx 22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. xxx xxx xxx 22. Let us consider the scope and ambit of Order 1 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." 8. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the cases cited supra, this Court finds that the intervenors assert that they are in possession of the suit land on the basis of the oral gift dated 01.01.2005 made by Sk. Piru, defendant. They have also instituted C.S. No. 1416 of 2017 along with the plaintiffs against the defendant in the same court. The suit is subjudice. They are proper parties to the suit. 9. There is no perversity or illegality in the impugned order warranting interference of this Court under Article 227 of the Constitution of India. The petition is dismissed. Learned trial court shall consolidate both the suits and dispose of the same within a period of six months.