S. Varalakshmi L.Varalakshmi vs M. Dilli Bai Another
2022 Latest Caselaw 5276 AP

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           THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

              CIVIL REVISION PETITION No.139 of 2015

O R D E R:

The plaintiff in O.S.No.206 of 2011 on the file of the Court of I

Additional Junior Civil Judge, Tirupati is the petitioner herein. This

Civil Revision Petition is directed against the orders dated 24.11.2014

passed by the said Court in I.A.No.580 of 2014 in O.S.No.206 of 2011.

2. The said suit was instituted by the petitioner herein seeking

permanent injunction against the first respondent/D1 and during

pendency of the suit, the first respondent/D1 filed petition before

trial Court under Order I Rule 10(2) read with Section 151 CPC and

Rule 28 of Civil Rules of Practice to implead the second

respondent/D2 as one of the defendant in the suit being original

owner of plaint schedule property for proper adjudication of the

dispute. The said petition was allowed by the learned trial Judge

against which the present revision petition has been filed. The orders

passed in I.A.No.580 of 2014 in O.S.No.206 of 2011 are under

challenge in the present Civil Revision Petition.

3. I have heard learned counsel for the revision petitioner as well

as learned counsel for first respondent.

4. It is contended by learned counsel for the revision petitioner

that the order impugned is erroneous, contrary to law and is opposite

to the very scope and object of Order I Rule 10 CPC as petitioner

being a plaintiff is dominus litis, she cannot be forced to add a party

against whom she is not intended to litigate and it is for the plaintiff

to decide against whom she has to file suit, seek relief and plaintiff is

the master of the lis. He submits that in a suit for injunction

simplicitor, second respondent is not necessary party or proper party

to arrive just conclusion in the suit. He prays to allow the Civil

Revision Petition and set aside the orders passed by the trial Court in

I.A.No.580 of 2014 in O.S.No.206 of 2011.

5. Learned advocate for first respondent mainly contended that

admittedly second respondent is the original owner of plaint schedule

property, which petitioner and first respondent are claiming and for

effective disposal of the suit and to avoid multiplicity of litigation and

to arrive just conclusion in the suit, adding of second respondent as

second defendant in the suit is necessary, which petition filed by the

first respondent rightly allowed by the learned trial Judge, needs no

interference. She prays to dismiss the revision petition.

6. Now, the point for determination is, 'Whether the order under

challenge is sustainable and tenable and whether the same warrants

any interference of this Court under Article 227 of Constitution?

7. POINT: Before considering the contentions raised by both sides,

now it would be essential to extract Order I Rule 10 CPC, which reads

as under:

10. Suit in 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 the 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) 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.

(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 the Indian Limitation Act, 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."

8. A reading of the above provision of law makes it abunduntly

clear that parties to suits are of two kinds, viz. necessary party and

proper party. A necessary party is a party without whom suit cannot

be decided. A proper party is a party in whose absence, suit will not

be defeated. Hence, non-joinder of necessary party is fatal to the

suit and non-joinder of proper party is not fatal to the suit. Also,

proper party is a party against whom any relief has not been sought.

The question of necessary party and proper party has to be looked

with atmost due diligence with an object to avoid multiplicity of

proceedings.

9. In BALURAM v. P.CHELLATHANGAM AND OTHERS 1 in Civil

Appeal Nos.10940 and 10941 of 2014, Judgment dated 10.12.2014, the

Hon'ble Apex Court explained the scope of Order I Rule 10(2) of CPC

at Para 14, which reads as under:

" 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. The said sub-rule is extracted below:

"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 [pic]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."

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.

Civil Appeal Nos.10940 and 10941 of 2014

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."

10. Though the ratio laid down in the above referred decision is in

respect of suit for specific performance, the Hon'ble Apex Court

considered the scope of Order I Rule 10(2) CPC and held that Court

while exercising its judicial discretion under Order I Rule 10(2) of the

Code, the Court will ofcourse act according to reason and fair play

and not according to whims and caprice. It is also explained by

Hon'ble Apex Court though plaintiff is dominus litis, Order I Rule

10(2) CPC provides for impleadment of proper or necessary parties if

Court feels that their presence is necessary to arrive just conclusion

in the suit, which can order for implead them as a party suo moto or

petition filed by eitherside. Due to that plaintiff on the doctrine of

dominus litis cannot oppose adding of proper or necessary party to

the suit in view of specific provision under Order I Rule 10(2) CPC.

11. The suit is filed by the petitioner seeking relief of permanent

injunction against second respondent, who is her elder sister claiming

exclusive possession over the plaint schedule property, which is house

bearing Dr.No.764, Balaji Nagar, Tirumala, which admittedly belongs

to second respondent/D2. It is not in dispute that originally the said

plaint schedule property was alloted to the father of the petitioner

and first respondent and licence to stay in the schedule property

given to father of the petitioner and first respondent and hawker

licence also granted to him, which is not in dispute. After the death

of father of the petitioner and first respondent, by name

Mr.Ponnuswamy Chetty, petitioner said to be in exclusive possession

and enjoyment of plaint schedule property on the basis of alleged

sworn affidavit given by late Mr.Ponnuswamy Chetty and first

respondent/D1 reporting no objection. In a petition filed before the

trial Court, second respondent also filed counter stating that plaint

schedule property belongs to Tirumala Tirupathi Devastanam and the

same was alloted to Mr.Ponnuswamy Chetty and the petitioner and

first respondent are the children of Mr.Ponnuswamy Chetty and they

granted licence to stay in the plaint schedule property alloted to

Mr.Ponnuswamy Chetty, which is still in his name and they also

granted hawker licence to him for his livelihood and after the demise

of Mr.Ponnuswamy Chetty, first respondent had put the schedule

property in her possession and enjoyment and after expiry of licence,

neither tenant nor his legal heirs or legal representatives are entitled

to continue in the subject property due to that they issued legal

notice dated 14.03.2012 to the petitioner as well as first respondent

calling upon them to handover possession of the plaint schedule

property within ten (10) days from the date of receipt of notice and

they also pleaded that they are entitled to evict the petitioner by

initiating legal action as per provisions of Andhra Pradesh Charitable

Hindu Religious Institutions and Endowments Act, 1987. They have

stated that the dispute is between the petitioner and the first

respondent for which they are no way concerned and they are not

necessary parties to the lis. On perusal of counters filed by the

petitioner herein and second respondent, which makes it clear that

there is no dispute about original ownership of plaint schedule

property lies with second respondent and petitioner, who filed suit for

injunction simplicitor seeking equitable relief for which she has to

prove her possession on the date of filing of the suit and trial Court in

its order after discussing the contentions raised by both sides, came

to the conclusion that to avoid multiplicity of proceedings, adding of

second respondent as one of the defendant will help the Court to

arrive just conclusion in the suit, which will not cause any prejudice

to the petitioner herein. After considering relationship between the

petitioner and the first respondent and nature of dispute between

them though suit is filed for injunction simplicitor, second respondent

being original owner of plaint schedule property is proper party to the

suit to avoid multiplicity of litigation and to arrive just conclusion in

the suit, which discussion rightly extended by learned trial Judge.

This Court did not find any irregularity or illegality in the findings

arrived by the trial Court calling interference of this Court invoking

revisional jurisdiction.

12. In the result, the Civil Revision Petition is dismissed. No order

as to costs. The learned trial Judge is directed to add second

respondent as one of the defendant in the suit and proceed with the

trial and dispose of the same within six (06) months from the date of

receipt of copy of this order. Miscellaneous Petitions, if any pending,

stand closed.

___________________________ JUSTICE BANDARU SYAMSUNDER Date :18.08.2022 Rns

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.139 of 2015

Date : 18.08.2022

Rns