Delhi High Court
Mool Chand vs Dy Director Dda & Anr on 30 November, 2015
Author: Pratibha Rani
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 30th November, 2015
+ CM(M) 378/2015
MOOL CHAND ..... Petitioner
Through: Mr.R.K.Shukla, Advocate.
versus
DY DIRECTOR DDA & ANR ..... Respondents
Through: Mr.Vaibhav Agnihotri, Advocate.
PRATIBHA RANI, J. (Oral)
CM(M) 378/2015
1. The petitioner has invoked the extra ordinary jurisdiction of this Court
under Article 227 of the Constitution of India praying for setting aside the order
dated 26.02.2015 whereby the learned Trial Court directed the
petitioner/plaintiff to implead owner/landlord of the suit property and to make
necessary pleadings in the suit.
2. I have heard learned counsel for the parties and also gone through the
impugned order.
3. The relevant portion of the impugned order dated 26.02.2015 is extracted
as under:
"Learned counsel for the plaintiff submits that landlord and the
owner of the suit is not a necessary party in the present case.
Since he is a tenant in the suit property, he does not want to
implead owner/landlord of the suit property in the present case
as there is not (sic no) cause of action against the said owner.
Heard.
It is admitted by the counsel for the plaintiff that the
plaintiff is not the owner but only is a tenant of somebody else,
therefore owner/landlord of the suit property requires to made
as a party as his interest are directly effected through the
present suit concerning suit property.
In these circumstance, Ld.counsel for the plaintiff is
directed to implead the owner/landlord of the suit property and
to make necessary pleadings in the present suit by the next date
of hearing i.e. 19.03.2015."
4. Under Order I Rule 10 (2) CPC, at any stage of the proceedings the
Court has ample power to strike out the name of any party who has been
improperly joined or such person may be joined whose presence before the
Court is necessary in order to enable the Court to fully or completely adjudicate
upon and settle the questions.
5. The principles governing impleadment as well who is a necessary and
proper party, have come up for consideration before the Supreme Court in
Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre and
Hotels Pvt. Ltd. & Ors. (2010) 7 SCC 417 wherein it was held as under :
8. 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 I Rule 10(2) of
Code of Civil Procedure (`Code' for short), which provides for
impleadment of proper or necessary parties. The said sub-rule
is extracted below:
Court may strike out or add parties.
(2) 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.
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 question 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. 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
disputes 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.'
6. The scope of power of this Court under Article 227 of the Constitution is
not in the nature of appellate jurisdiction and so, the extent and scope of power
with this Court is limited and restrictive in nature, and in the normal
circumstance, it is exercised where there is want of jurisdiction, error of law or
perverse findings by the trial Court. Such power is to be exercised to keep the
subordinate court within limits of their jurisdiction and authority and it is not to
act as an Appellate Court for correcting the decisions of the subordinate courts.
This court would not substitute its opinion or interfere with the findings of the
facts of the trial Court, if there was no infirmity or perversity. Thus, in the
absence of there being any material illegality or perversity, the order of the
court below is not to be faulted with or interfered with by this court in its
supervisory power under Article 227.
7. Finding no illegality or perversity in the impugned order, the petition is
dismissed.
8. No costs.
CM No.7920/2015 (Stay)
Dismissed as infructuous.
(PRATIBHA RANI)
JUDGE
NOVEMBER 30, 2015/'st'
