Jharkhand High Court
Mohammad Rafi Rain vs Md. Hanif on 20 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 295 of 2022
Mohammad Rafi Rain ...... Petitioner
Versus
1. Md. Hanif
2. Wasi Ahmad ......Respondents
----------
For the Petitioner : Mr. Niraj Kumar Singh, Advocate
For the Resp. No.1 : Mr. A.K. Sahani, Advocate
Mr. Anand Kr. Pandey, Advocate
----------
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
-----
JUDGMENT
C.A.V. On 30. 08. 2023 Pronounced On: 20 . 09 .2023
1. The instant civil miscellaneous petition has been filed under article 227 of
the Constitution of India for quashing the order dated 03.02.2022, passed by
learned Civil Judge/ (Jr. Division) I, Palamau at Daltonganj in Title Suit No.
64 of 2010 whereby and whereunder the Court below has rejected the
application of the petitioner under Order I Rule 10 (2) CPC for impleading
as a party defendant in the said suit.
2. Learned counsel for the petitioner/ intervener submitted that while passing
the impugned order the learned Civil Judge Junior Division has failed to
properly appreciate the facts and the law involved in this case and arrived at
erroneous conclusion. The court below should have held that the intervener
applicant has right, title, interest and possession over the suit land inherited
from his father Mohammad Sheikh Abdul Rahman along with other family
members including the defendant joined in this case namely, Wasi Ahmad
respondent no.2, own younger brother of the intervener/applicant. It is
admitted by plaintiff that originally the suit land belong to late Abdul
Rahman but it has been falsely pleaded that said Sheikh Abdul Rahman
executed a "Bazidawa" in the year 1940 by leaving and relinquishing his
entire interest from the suit land in favour of one Sekhawat Mukeri. It is also
pleaded by plaintiff that he has purchased the suit land appertaining to Khata
No. 342 Plot No. 1108 admeasuring area 3 decimal in Mouza Japla Dharhara
from the legal heirs and descendants of said Sekhawat Mukeri namely,
Salamat Mukeri through registered sale deed in the year 2008. It is further
submitted that in absence of petitioner only defendant Wasi Ahmad
(Respondent No. 2) encroached the suit land and house and forcibly
acquired possession. It is further submitted that intervener/ petitioner has
also paid land revenue to the State and Jamabandi is opened in the name of
his father. In this regard rent receipts annexure 1 series in respect of land
pertaining to Khata No. 342 Plot No. 1108 area 3 decimal up to year 2008,
2009 and 2010 have been filed. The petitioner is a necessary party to the suit
and without impleading him, no effective and executable decree can be
passed in this case. Due to non-impleading the applicant as defendant in the
suit he would suffer great prejudice and irreparable loss. It is also submitted
that prior to filing the application before court below the petitioner had no
knowledge about the pendency of the suit but as soon as he came to know
about the pendency of suit and ill motive of the plaintiff he filed the petition
under Order I Rule 10 (2) CPC before the learned court below and such type
of application can be filed at any stage of the proceeding. Hence, delay
cannot be a ground for rejection of application of the petitioner, hence,
impugned order is devoid of merits and fit to be set aside.
3. Per contra, learned counsel for the plaintiff/respondent no.1 has contended
that the learned court below has rightly rejected the application of the
petitioner under Order 1 Rule 10 (2) read with Section 151 CPC which was
filed at belated stage of the suit after recording evidence of the plaintiff and
the case was fixed for defendant evidence. The impleadment of petitioner
would entail De Novo Trial of the suit. In the present case the own brother of
the present petitioner namely, Wasi Ahmad is defendant and contesting the
suit. The plaintiff was dispossessed by Wasi Ahmad, hence he has instituted
this suit only against him and has claimed no relief for any cause of action
against the present petitioner. The intervener /petitioner is neither necessary
party nor proper party of the suit and the plaintiff in a suit commanding
Dominus Litis is at liberty to choose the person from whom he wishes to
litigate against and he cannot be compelled to choose a person against whom
he does not choose relief, hence the application of petitioner has rightly been
rejected by the learned court below. There is no illegality or infirmity in the
impugned order calling for any interference and this petition being devoid of
merits is fit to be dismissed.
4. It appears that after hearing the arguments of both parties and considering
the judgment relied upon by the plaintiff/ respondent no.1 in Nasim Khan
Versus State of Jharkhand and anr. reported in (2014) 4 237 (HC) also in
Udit Narayan Singh Malpharia Vs. Additional Member Board of Revenue
Bihar reported in AIR 1963 SC 786, learned trial court observed that:-
"plaintiff in a suit being Dominus Litis chooses a person against whom he
chooses to litigate. The plaintiff cannot be compelled to sue a person against
whom he does not seek relief. It was also observed that necessary party is
one without whom no order can be made effectively and proper party is one
in whose absence an effective order can be made but whose presence is
necessary for complete and final decision of the question involved in the
proceeding. It was further observed that in the present case the alleged
source of right pleaded by defendant no. 1 over the suit property is same as
that of intervener. The plaintiff has sought direct relief against the defendant.
It is not a family dispute where all the shares of a property have claimed for
their shares over the suit property, hence, the learned trial court formed
opinion that the petitioner is not a necessary party to this suit. The suit is at
advanced stage of trial and allowing such petition shall defeat the interest of
justice. Hence petition filed by intervener is rejected."
5. In the case of Mumbai International Airport (P) Ltd. v. Regency Convention
Centre & Hotels (P) Ltd., (2010) 7 SCC 417, The Hon'ble apex Court has
considered the scope of order I Rule 10 (2) of the CPC and observed:-
"13. 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:
Order I Rule 10 (2)
The Court may strike out or add parties:-
"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 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.
6. The said provision makes it clear that a court may, at any stage of the
proceeding add the necessary or proper party in the suit.
" 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 the 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 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 in a suit for specific performance."
7. On the basis of above discussion and provisions of law and legal principles
propounded by Hon'ble Apex Court following consideration must be borne
in mind, while, exercising the powers of joinder of parties:-
(1) the plaintiff is Dominus Litis i.e. he is best judge of his own interest.
Therefore, it is upon the plaintiff to choose his opponent from whom relief is
claimed. Ordinarily, the court should not compel the plaintiff to fight against
a person whom he does not desire to fight and from whom he claims no
relief;
(ii) If the court is satisfied that presence of a particular party is necessary to
effectively and completely adjudicate all the disputes between the parties,
irrespective of the issues of the plaintiff, the court may exercise the
power and join a person as a party to the suit.
The line has been drawn on a vital 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
result which will affect him legally, i.e. by pertaining his legal rights.
The question to be posed as whether there is curtailment or extinction
of a person's right.
The true test lies not so much in an analysis of fault or the constituents
of the applicant's right, but rather in what would be the result on the
subject matter of the action if those rights could be establish. The test is
"may the order for which the plaintiff is asking directly affect the
intervener in the enjoyment of his legal rights.
Based upon these considerations, the court shall exercise its power
of joinder at any stage of the proceeding either upon the application
by a party to the suit or suo motu. On such terms and conditions as
the court may be judged.
8. Applying the aforesaid provisions and principles of law towards the facts
of this case, it is obvious that the plaintiff/ respondent no.1 has based his
claim to the suit land that it was recorded as Gair mazarua Mallick Land in
the last cadastral survey and settlement operation and a house owned,
possessed and managed by Ward/Manager of encumbered estate and a house
was also standing over the same, which was settled to one Shekhawat
Mukeri in CS records of rights published in 03.01.1932. After vesting of
Jamindari demand was created in his name. The descendants of Shekhawat
Mukeri namely Salamat Mukheri sold the suit land to the plaintiff through
registered sale deed No. 1945 dated 19.12.2008. It is also specifically
pleaded that father of the present petitioner namely, Abdul Rahman raised a
dispute in respect of suit land with the original owner which was resolved in
the year 1940, whereby said Abdul Rahman relinquished through deed dated
15.10.1940 the claim over the suit land by executing Bazidawa. The plaintiff
has further claimed that defendant Wasi Ahmad stealthily entered into the
suit house on 17.02.2010 without having any right title and interest over the
suit property and by virtue of registered sale deed dated 19.12.2008 executed
in his favour recovery of possession by evicting the defendant through
process of the court along with cost of the suit.
9. There is no dispute that present petitioner is real brother of the original
defendant impleaded in the suit and is in join possession of the suit property
prior to the institution of the suit itself as rent receipts filed by the petitioner
in respect of suit land from the year 2008, 2009, 2010. (annexure 1 series)
which still stands in the name of late Abdul Rahman. If the relief sought by
plaintiff is decreed in his favour, it will certainly affect the legal rights of the
petitioner leading to his eviction from the suit property without any
opportunity to contest in the litigation. Therefore, it is obvious that the
present petitioner is a necessary and proper party in the suit. In the instant
case even if a decree is passed in favour of plaintiff, the petitioner will have a
right to resist the execution thereof. It is also settled principle of law that
there is no limitation for impleadment of a necessary or proper party in the
suit as per provision under Order I Rule 10 (2) CPC which specifically
provides that the party may be added at any stage of the proceeding.
Therefore, the legal claim of the petitioner cannot be defeated merely on the
ground of delay or advance stage of the proceeding of the suit.
10. In view of the aforesaid discussions and reasons, I find merits in this petition
and also of the confirm view that the learned court below has failed to
properly exercise its discretion vested under order I Rule 10 (2) CPC and has
recorded erroneous findings and arrived at wrong conclusion while rejecting
the application of the petitioner. Hence, impugned order is not legally
sustainable and hereby set aside. This petition is allowed.
11. The court below is directed to implead the petitioner in the Title Suit No. 64
of 2010 as party defendant and the learned trial court shall proceed further in
accordance with law.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
R.K/- A.F.R.
