Delhi High Court
Manju Gupta vs Daya Ram & Ors on 28 February, 2017
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28.02.2017
+ C.R.P. 51/2017 & CM Nos.8123-124/2017
MANJU GUPTA ..... Petitioner
Through Mr.Amit Swami, Advocate
versus
DAYA RAM & ORS ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present petition filed under Section 115 read with Section 151
CPC, the petitioner seeks to impugn the order dated 25.10.2016 by which his
application filed under Order 1 Rule 10 CPC was dismissed.
2. The present suit is filed by the plaintiff/respondent No.1 for
possession, recovery, damages and mesne profits. It is contended in the
plaint that the property was purchased by Sh.Naresh Chand Gupta. The
property was occupied by various tenants/trespassers. It is further stated that
defendants/respondents No.2 to 5 are the trespassers in the property.
Respondent No.1/plaintiff claims title through alleged Will and Power of
Attorney which is said to have been executed by Sh.Naresh Chand Gupta
measuring for area 150 sq.yds. in his favour. Hence, the suit for possession.
3. The petitioner has moved this application under Order 1 Rule 10 CPC
claiming that he is the actual owner of the entire property by virtue of a
registered Will and General Power of Attorney dated 30.01.1999 executed
C.R.P. 51/2017 Page 1 of 4
by Sh.Naresh Chand Gupta. Hence he seeks impleadment by stating that he
is the necessary and proper party.
4. The trial court by the impugned order dismissed the said application
holding that the plaintiff is dominus litus. He is the best judge to determine
his own interest. It also noted that the petitioner is not in possession of the
suit property. Further by impleading the petitioner, the basic nature of the
suit would be completely change the lis of the suit. For the purpose of
adjudication of the lis in the suit the presence of the applicant was not
necessary.
5. I have heard the learned counsel for the petitioner.
6. Order 1 Rule 10(2) CPC reads as follows:
"(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. Hence, the Court may at any stage 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.
8. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention
Centre & Hotels Pvt. Ltd.; (2010) 7 SCC 417 the Supreme Court held as
follows:-
C.R.P. 51/2017 Page 2 of 4
"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.
.............
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 accordingly to
reason and fair play and not according to whims and caprice."
9. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of
Bombay; (1992) 2 SCC 524 the Supreme Court held as follows:-
"14. .....The only reason which makes it necessary to make a
person a party to an action is so that he should be bound by the
result of the action and the question to be settled, therefore,
C.R.P. 51/2017 Page 3 of 4
must be a question in the action which cannot be effectually and
completely settled unless he is a party. The line has been drawn
on a wider construction of the rule between the direct interest or
the legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally interested
in the action in the answer i.e., he can say that the litigation
may lead to a result which will affect him legally that is by
curtailing his legal rights."
10. Hence, a proper party is a party whose presence would enable the
court to completely, effectively and adequately adjudicate on all matters in
dispute. In my opinion, the petitioner is neither a necessary nor a proper
party. The suit is filed for possession. By introducing the petitioner in the
suit, the suit will become a title suit between the plaintiff/respondent No.1
and the petitioner. The entire nature of the case would be changed.
11. There are no reasons to interfere with the impugned order. The
petition and all the pending applications are dismissed.
JAYANT NATH, J.
FEBRUARY 28, 2017/v
