Om Prakash Das vs Vichar Das And 2 Others
2022 Latest Caselaw 9616 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 03.08.2022
 
Delivered on 08.08.2022
 
Court No. - 10
 

 
Case :- CIVIL REVISION No. - 52 of 2021
 
Revisionist :- Om Prakash Das
 
Opposite Party :- Vichar Das And 2 Others
 
Counsel for Revisionist :- Adya Prasad Tewari
 
Counsel for Opposite Party :- Anil Pratap Singh,Kailash Pati Singh Yadav,Prabhakar Vardhan
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. This revision under Section 115 of Code of Civil Procedure, 1908 (hereinafter called as ''C.P.C.') arises out of order dated 08.01.2021 passed by Civil Judge (Senior Division), Fast Track Court, Gorakhpur in Original Suit No. 400 of 2017, whereby the amendment application moved by the revisionist under Order 6 Rule 17 C.P.C. being Paper No. 25/K2 for striking out the name of defendant no. 3 from array of parties was rejected.

2. Facts in nutshell, are that plaintiff-revisionist filed a suit for declaration declaring him the Mahant of one Sant Kabir Math. Relief of permanent injunction was also claimed against defendants from not interfering into the peaceful possession of the plaintiff over the property of the Math and also not to evict the plaintiff. An amendment application under Order 6 Rule 17 was filed by plaintiff in the year 2020 after the suit was being contested by defendant no. 3 for striking off her name from the plaint. The application was contested by defendant no. 3 by filing her objection being Paper No. 28Ga and affidavit 29Ga on the ground that the property in dispute was entered into the name of her father Ram Nagina in whose favour one Jamuna Das had executed the Will. Ram Nagina had executed a Will in favour of defendant no. 3 on 05.01.2002, and after the death of Ram Nagina, name of defendant no. 3 was entered in the revenue records vide order dated 20.03.2007. Against the said order, a revision was preferred before the Additional Commissioner, Gorakhpur who dismissed the revision on 08.04.2013, against which writ petition has been filed before this Court which is pending. According to defendant no. 3, her name is still recorded in the revenue records and the order dated 20.03.2007 is still standing in the revenue records. The court below after the exchange of pleadings vide order dated 08.01.2022 rejected the application of the plaintiff-revisionist. Hence, the present revision.

3. Sri A.P. Tewari, learned counsel appearing for the revisionist submitted that plaintiff is the dominus litis, and is master of the suit. According to him, defendant no. 3 is neither a necessary or a proper party and thus plaintiff sought for amendment for deleting the name of defendant no. 3. He then submitted that court below did not consider the true import of Order 1 Rule 10(2) C.P.C. and passed the order on non existent and unfounded grounds.

4. He then contended that as no relief was sought against defendant no. 3, thus, the court below was not justified in refusing the amendment sought. Reliance has been placed upon decisions of Apex Court in case of Kasturi vs. Iyyamperumal and Ors1, and decision rendered in Gurmit Singh Bhatia vs. Kiran Kant Robinson and others2.

5. I have heard learned counsel for the revisionist and perused the material on record.

6. Before adverting to decide the issue in hand, a cursory glance of Order 1 Rule 10 (2) is necessary for better appreciation of the case, which is extracted hereasunder:-

"Order 1 Rule 10 (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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

7. From perusal of Sub-rule (2) of Rule 10 of Order 1, it is clear that the court may at any stage of proceeding add parties or delete a party either on the application of a party or suo moto or by a third party who desires to be added as a party.

8. In exercise of the power to implead a person suo moto, the court has to see that a collusive decree is not obtained against real owner or interested owner without impleading him as a party and it does not become final affecting vitally the rights of such a person. The power of the court under this sub-rule is of discretion to be exercised judicially, keeping in mind that one of its object is to prevent multiplicity of suits and conflicts of decisions. Though, it is not in dispute that plaintiff is dominus litis, he cannot be compelled to sue a person against whom he does not claim any relief, unless it is held keeping in view pleading and relief claimed therein that a person sought to be added as a party is a necessary party and without his presence neither the suit can proceed nor the relief can be granted. The doctrine of dominus litis was thus explained by the Apex Court in case of Mohamed Hussain Gulam Ali Shariffi vs. Municipal Corporation of Greater Bombay and Ors.3.

9. The Sub-rule (2) of Rule 10 of Order 1 C.P.C. clearly provides for the addition of (i) necessary parties and (ii) proper parties. ''Necessary parties' are parties, "who ought to have been joined", i.e., parties necessary to the constitution of suit without whom no decree can be passed at all. In order that a party may be considered a necessary party defendant, two conditions must be satisfied; first, that there must be a right to some relief against him in respect of matter involved in the suit. A necessary party is one without whom no decree can be made effectively.

10. A proper party is one in whose absence, an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings. Failure to implead a necessary party as a party to a proceeding is fatal. Proper parties are those whose presence enables the court to adjudicate more "effectually and completely", as held in case of Shahsaheb vs. Sadashiv4.

11. In Kashi vs. Sadasiv5, the Court held that a person may be impleaded as a defendant to a suit, though, no relief can be claimed against him, provided his presence is necessary for a complete and final decision of the questions involved in the suit.

12. In Anil Kumar Singh vs. Shivnath Mishra6, the Apex Court held that object of Order 1 Rule 10(2) of C.P.C. is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that dispute may be determined in their presence and at the same time without any protraction, inconvenience and also to avoid multiplicity of proceedings. Relevant para 9 of the judgment is extracted hereasunder:-

"9. Sub-rule (2) of Rule 10 of Order 1 provides that the Court may either upon or without an application of either party, add any party whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party."

13. In Vidur Impex and Traders Pvt. Ltd. and Ors. vs. Tosh Apartments Pvt. Ltd. and Ors7, the Apex Court laid broad principles which should govern disposal of application for impleadment. Relevant paras are extracted hereasunder:-

"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. 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."

14. Admittedly, defendant no. 3 is claiming right over the land for which relief for permanent injunction has been sought by plaintiff, and her name has been mutated on revenue records on the basis of the Will executed by her father in the year 2002 and is continuing over the possession since then. The defendant no. 3 is a necessary party in view of fact that her name has already been recorded in the revenue records on the basis of Will and plaintiff had sought relief of permanent injunction against defendants.

15. Though, in the suit filed by the plaintiff relief for declaration as well as injunction has been sought, now at a later stage, the plaintiff cannot get the suit amended to the extent by deleting name of defendant no. 3 on the ground that only declaration as a Mahant has been sought.

16. The trial court rightly rejected the application filed under Order 6 Rule 17 C.P.C. on the ground that in case the name of defendant no. 3 is deleted from the array of parties, it will give cause to the multiplicity of litigation. In Anil Kumar Singh (supra), the Hon'ble Apex Court had rightly held that all parties to dispute relating to a subject-matter should be brought on record and dispute be determined in their presence so as to avoid multiplicity of proceedings.

17. It is not in dispute that name of defendant no. 3 is recorded in the revenue records over the property in dispute for which the injunction has been sought by the plaintiff, while the first relief claimed is for declaring the plaintiff as Mahant of Sant Kabir Math. In case the name of defendant no. 3 is deleted it would lead to multiplicity of litigation.

18. Considering the facts and circumstances of the case, this Court finds that no interference is required in the order dated 08.01.2021 passed by court below rejecting the application for amendment.

19. The revision fails and is hereby dismissed.

Order Date :-08.08.2022

V.S.Singh