Delhi High Court
Kanwar Singh Saini vs Mohd Yusuf And Anr on 26 March, 2015
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.03.2015
+ FAO(OS) 38/2015 & CM 1329/2015
KANWAR SINGH SAINI ... Appellant
versus
MOHD YUSUF AND ANR ... Respondents
Advocates who appeared in this case:
For the Appellant : Mr Tanmaya Mehta
For the Respondent Nos. 3-4 : Ms Savita Rustogi
For the Respondent No.1 : Mr S. P. Sinha with Mr Rakesh Mishra
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This appeal is directed against the judgment dated 07.11.2014
delivered by a learned Single Judge of this Court in IA 10071/2013 in
CS(OS) 3102/2012, which was filed by the appellant/ plaintiff under Order 1
Rule 10 CPC read with Section 151 CPC for impleadment of two persons --
Mr Ved Prakash Saini and Mr Mohar Pal Singh-- as defendant Nos. 3 and 4.
2. We are not going into the reasons as to why the impleadment was
sought. The learned counsel for the appellant has pointed out that the
necessary parameters for considering an application under Order 1 Rule 10
CPC have not at all been considered by the learned Single Judge while
rejecting the said application. According to the learned counsel, the two
necessary points which need to be considered before a person can be
impleaded in or deleted from the array of parties, is whether the person is a
necessary or proper party. Admittedly, the learned counsel for the appellant
states that the proposed defendant Nos. 3 and 4 are not necessary parties.
However, he submits that they are proper parties. This aspect of the matter,
as to whether the proposed defendant Nos. 3 and 4 are proper parties or not,
has not at all been considered by the learned Single Judge, who has rejected
the application merely on the ground of delay. The learned counsel for the
appellant has drawn our attention to the decision of a Division Bench of this
Court in Charanjeet Singh Rekhi v. Harish Ahuja and Others: FAO(OS)
202/2013 and other connected matters delivered on 07.07.2014. The
relevant extracts of the said decision are as under:-
"28. A plain reading of Order 1 Rule 10(2) of CPC indicates
that the Court has wide discretion to strike out the names of the
parties which have been improperly joined and implead any person
as a party whose presence may be necessary in order to enable the
Court to effectively and completely adjudicate upon and settle all
the questions involved in the suit. The Supreme Court, in a number
of decisions, has interpreted the provisions of Order 1 Rule 10 of
CPC and held that it provides the Court with the necessary
discretion to implead any person who is either a necessary or a
proper party and whose presence is essential for the effective
adjudication of the disputes involved in an action. In Thomson
Press (India) Ltd. (supra), the Supreme Court stated this
proposition as under:-
"31. From the bare reading of the aforesaid
provision, it is manifest that sub-rule (2) of Rule 10 gives
a wider discretion to the court to meet every case or
defect of a party and to proceed with a person who is
either a necessary party or a proper party whose presence
in the court is essential for effective determination of the
issues involved in the suit."
29. It is well settled that a necessary party is one in the absence
of whom no effective order can be passed. A proper party is one in
whose absence an effective order can be passed but its presence is
necessary for adjudication of the disputes involved in the suit. The
Supreme Court in the case of Ramesh Hirachand Kundanmal
(supra) has explained this in the following words:-
"6. Sub-rule (2) of Rule 10 gives a wide discretion
to the Court to meet every case of defect of parties and is
not affected by the inaction of the plaintiff to bring the
necessary parties on record. The question of
impleadment of a party has to be decided on the
touchstone of Order 1 Rule 10 which provides that only a
necessary or a proper party may be added. 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. The addition of
parties is generally not a question of initial jurisdiction of
the Court but of a judicial discretion which has to be
exercised in view of all the facts and circumstances of a
particular case."
xxxx xxxx xxxx xxxx
"32. We are unable to accept this contention. It is settled law
that in order to determine whether a person is a necessary party to
an action, one of the tests that is to be applied is whether he should
be bound by the result of the action. The Supreme Court in the case
of Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd.:
(2012) 8 SCC 384 has referred to various decisions and set down
the broad principles which are applied while considering an
application for impleadment. The relevant extract of the said
judgment is as under:-
"41. Though there is apparent conflict in the
observations made in some of the aforementioned
judgments, the broad principles which should govern
disposal of an application for impleadment are:
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."
3. After hearing the counsel for the parties and on going through the
impugned judgment, we find that the considerations referred to in the said
Division Bench decision, have not been granted by the learned Single Judge.
We, therefore, set aside the impugned judgment dated 07.11.2014 and remit
the matter to the learned Single Judge for a decision afresh on IA
10071/2013 on the lines indicated in the said Division Bench decision in
Charanjeet Singh Rekhi (supra) upon consideration of the appropriate
parameters as to whether the proposed defendant Nos. 3 and 4 are proper
parties or not. The issue of „necessary party‟ need not be gone into inasmuch
as the learned counsel has fairly conceded that the proposed defendant
Nos. 3 and 4 would not be necessary parties. The said IA 10071/2013 be
listed before the learned Single Judge in the first instance on 09.04.2015.
The appeal is allowed as above.
BADAR DURREZ AHMED, J
MARCH 26, 2015 SANJEEV SACHDEVA, J
SR
