Gauhati High Court
Page No.# 1/6 vs Priya Kalita And 5 Ors on 4 August, 2023
Page No.# 1/6
GAHC010089552018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/46/2018
BINOY KALITA AND 4 ORS.
S/O- LATE SANA KALITA, R/O- VILL- BHAREGAON, P.O- SARUPETA,
MOUZA- HASTINAPUR, P.S- PATACHARKUCHI, DIST- BARPETA, ASSAM
2: GITIKA KALITA
D/O- LATE SANA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
3: SASHI KALITA
S/O- LATE KALARAM KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
4: KRIPA KALITA
S/O- LATE KALARAM KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
5: GOPAL KALITA
S/O- KALARAM KALITA
R/O- VILL- BHAREGAON
Page No.# 2/6
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSA
VERSUS
PRIYA KALITA AND 5 ORS.
S/O- LATE ASUKHA KALITA, R/O- VILL- BHAREGAON, P.O- SARUPETA,
MOUZA- HASTINAPUR, P.S- PATACHARKUCHI, DIST- BARPETA, ASSAM,
PIN- 781318
2:ASWINI KALITA
S/O- LATE ASUKHA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 781318
3:HAREKRISHNA KALITA
S/O- LATE ASUKHA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 781318
4:SADA KALITA
S/O- LATE ASUKHA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 781318
5:KRISHNA KALITA
S/O- LATE KALIKANTA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
Page No.# 3/6
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 781318
6:PAREMESWAR KALITA
S/O- LATE ASUKHA KALITA
R/O- VILL- BHAREGAON
P.O- SARUPETA
MOUZA- HASTINAPUR
P.S- PATACHARKUCHI
DIST- BARPETA
ASSAM
PIN- 78131
Advocate for the Petitioner : MR. B PATHAK
Advocate for the Respondent : MR K KALITA (R1-4, R6)
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
04.08.2023
Heard Mr. B. Pathak, learned counsel appearing for the petitioners.
Also heard Mr. R. Sarma, counsel representing the respondents.
2. This is an application under Section 115 of the Code of Civil
Procedure seeking revision of the order dated 06.03.2018 passed by the
learned Munsiff, Bajali, Pathsala in T.S. No.5/2013.
3. In the suit before the trial court, the respondent appeared and filed
Page No.# 4/6
an application under Order 1 Rule 10(2) of the Code of Civil Procedure
praying for his impleadment in the suit as one of the defendants.
4. The petitioner objected to the said prayer.
5. The trial court allowed the prayer of the respondent on the ground
that the other defendants while filing counter claim, made a plea that
the respondent is a necessary party in the said suit. Therefore, the trial
court impleaded the respondent as one of the defendants.
6. Aggrieved by the aforesaid order of the trial court, the present
revision petition has been filed.
7. Mr. Pathak submits that the petitioner being the plaintiff of the suit, is
the dominus litis. According to Mr. Pathak, when the plaintiff/petitioner
did not make the respondent a party in the suit, the court should not
have impleaded him as one of the defendants.
8. Per contra, Mr. Sarma has supported the order of the trial court.
9. I have considered the submissions made by the learned counsels of
both sides.
10. The principles of impleadment of parties under Order 1 Rule 10 of the
CPC are laid down by the Supreme Court in Vidur Impex & Traders (P)
Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384. The Supreme Court has
held 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,
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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."
11. I find that the learned Munsiff has elaborately discussed the issue
and has held that the present respondent is a necessary party in the said
case and therefore, impleaded him as one of the defendants.
12. The learned trial court has correctly exercised the power under
Order 1 Rule 10 of the CPC. The impugned order does not require any
interference of this Court. Therefore, the present petition is found to be
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devoid of merit and stands dismissed accordingly.
The Civil Revision Petition is disposed of.
JUDGE
Comparing Assistant
