Madhya Pradesh High Court
Pradeep Shivhare vs Smt Asha Devi Shivhare on 1 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 1 st OF MAY, 2025
MISC. PETITION No. 2248 of 2025
PRADEEP SHIVHARE
Versus
SMT ASHA DEVI SHIVHARE AND OTHERS
Appearance:
Mr. Shiv Shankar Bansal - Advocate for the petitioner.
Mr. Brij Mohan Patel - Government Advocate for the State.
ORDER
1. The petitioner/plaintiff has filed this miscellaneous petition
challenging the order dated 12.03.2025 passed by 22nd District Judge,
Gwalior in RCSA No.51/2022, whereby his application under Order 1 Rule
10 CPC filed by the respondent no.6 has been allowed and said respondent
has been directed to be impleaded as defendant in the suit.
2. The parties to the suit are legal heirs of late Chironjilal Shivhare.
The petitioner has filed the suit praying for a decree of declaration that the
will dated 17.01.2020 executed by late Chironjilal is forged and fabricated
and is not binding upon him. He has also prayed for a declaration that he is
having 1/5th share in the suit property and the defendants do not have any
right to alienate, encumber or transfer any part of suit property without
getting it partition by lawful process. The petitioner has also prayed for
decree of permanent injunction in respect of the suit property.
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3. The respondent no.6 filed an application under Order 1 Rule 10
CPC praying for its impleadment as defendant in the suit inter-alia on the
ground that late Chironjilal Shivhare had entered into a Joint Venture
Agreement dated 12.10.2013 in respect of his 43,830 sq. ft. of land
comprising of Survey No.130-136. As per the said agreement, the
commercial building was to be constructed and the amount to be received
therefrom was to be aportioned between respondent no.6 and late Chironjilal
Shivhare in the ratio of 45:55. The respondent no.6 has also stated that he has
paid a sum of Rs.2 crores towards guarantee to late Chironjilal Shivhare and
thereafter raised substantial construction over the aforesaid land. It is also
stated in the application that agreement for sale in respect of 160 shops and
shops have already been sold and sale deeds are to be executed. With the
aforesaid averments made in the application, the prayer was made for
impleading respondent no.6 as party in the suit.
4. The petitioner/plaintiff opposed the prayer made by respondent
no.6. By way of impugned order, the Trial Court has allowed the application
against which the miscellaneous petition has been filed.
5. Learned counsel for the petitioner vehemently argued that plaintiff is
the dominus litis in the suit and nobody can be directed to be impleaded as
defendant against his choice. He further submitted that plaintiff has not
prayed any relief against respondent no.6. As per his submission, the
respondent no.6 is neither necessary nor proper party for decision of the case.
His further submission is that the suit being one for declaration of his share
in the property, the respondent no.6 has no say in the matter. In support of
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his submission, learned counsel for the petitioner placed reliance upon the
Full Bench judgment of this Court in the case of Panna and another Vs.
Jeewanlal and another, reported in 1976 JLJ 84 and another judgment
rendered in the case of Meera Rani (Smt.) and others Vs. Ghanshyam
Sharma and others, reported in 2008 (1) MPWN 69 .
6. Considered the arguments and perused the record.
7. The principal that the plaintiff is dominus litis of the suit is not
disputed. But this general rule is subject of the courts power to direct
impleadment of a person under Order 1 Rule 10(2) CPC, if the same is found
to be necessary or proper party for adjudication of the case. When a person
can be said to be necessary or proper party has been dealt by the Apex Court
in the case of Mumbai International Airport Private Limited Vs. Regency
Convention Centre and Hostels Private Limited and others, reported in
(2010)7 SCC 417, wherein the Apex Court in paragraphs 13 to 15 held as
under :
"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 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:
"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
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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 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.
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 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. 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."
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8. In yet another case of Yogesh Goyanka Vs. Govind and others
reported in 2024 SCC Online SC 1692 , the Apex Court considering the issue
with regard to impleading a transferee pendenti lite. In para 17 & 18, the
Apex Court held as under:-
"17. Therefore, the mere fact that RSD was executed during
the pendency of the underlying suit does not automatically render
it null and void. On this ground alone, we find the impugned order
to be wholly erroneous as it employs Section 52 of the Act to
nullify RSD and on that basis, concludes that the impleadment
application is untenable. Contrary to this approach of the High
Court, the law on impleadment of subsequent transferees, as
established by this Court has evolved in a manner that liberally
enables subsequent transferees to protect their interests in
recognition of the possibility that the transferor pendente lite may
not defend the title or may collude with the plaintiff therein (see
the decision of this Court in Amit Kumar Shaw v. Farida
Khatoon [Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC
403] & A. Nawab John v. V.N. Subramaniyam [A. Nawab
John v. V.N. Subramaniyam , (2012) 7 SCC 738 : (2012) 4 SCC
(Civ) 324] ).
18. Similarly, we also find fault with the order of the ADJ
and its misplaced reliance on Bibi Zubaida [Bibi Zubaida
Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] . The only
principle emerging from the judgment of this Court in Bibi
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Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1
SCC 191] is that transferees pendente lite cannot seek
impleadment as a matter of right and to that extent, we agree with
the ADJ. However, Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi
Hassan Saheb, (2004) 1 SCC 191] does not place a bar on
impleadment of transferees who purchase property without
seeking leave of the Court. The decision of the Court in Bibi
Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1
SCC 191] turns on its own facts; the Court rejected the application
for joinder therein noting that the underlying suit was pending
since 1983 and upheld the finding of the trial court that the
subsequent purchaser was not bona fide and attempted to
complicate and delay the underlying suit. Therefore, the judgment
i n Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb,
(2004) 1 SCC 191] , being distinguishable on facts, does not assist
the respondents herein."
9. Thus, the Apex Court permitted impleadment of person who
purchased the property during pendency of suit. The respondent no.6 in the
present case stands on a better footing inasmuch as the agreement in its
favour was executed by Chironjilal in his life time.
10. In the facts of the present case, it is seen that late Chironjilal
Shivhare had entered into an agreement with respondent no.6 and acting
upon the said agreement, it has already spent a huge amount towards
development of the land. The prayer made by the petitioner in the plaint may
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not be directly concerning respondent no.6. However, by granting relief
prayed in the plaint, the valuable rights of respondent no.6 would be
prejudicially affected. It is not disputed by counsel for petitioner that part of
the suit property constitutes subject matter of Joint Venture Agreement.
Thus, the respondent no.6 is a proper party in the suit and has been rightly
permitted to be added as defendant in the suit by learned Trial Court.
11. The judgment of the Full Bench in the case Panna (supra) relied by
petitioner's counsel does not help the petitioner inasmuch as the Full Bench
has considered impleadment of a third party in a suit for specific
performance. The findings rendered by Full Bench are confined only to the
suit specific performance. The other judgment relied upon by the counsel for
the petitioner in the case of Meera Rani (supra) also does not help him in
view of the Apex Court judgment in the case of Mumbai International
Airport (Supra).
12. In view of the discussion made above, no illegality is found in the
order passed by learned Trial Court and the same is upheld. Petition is
dismissed in limine.
(ASHISH SHROTI)
JUDGE
bj/-
