C. Ramesh vs R. Sridharan and Others

Ram Mohan Reddy, J.—Petitioner in F.D.P. No. 58/07 on the file of the XIX Additional City Civil Judge, Bengaluru, aggrieved by the order dated 08.04.2011 rejecting interlocutory application under Order I Rule 10(2) of Code of Civil Procedure to implead respondents 1 to 8, has presented this petition under Article 227 of the Constitution.

Briefly stated facts are: petitioner claiming to be a member of Joint Hindu Undivided Family instituted O.S. No. 878/2004 for declaration, partition and separate possession of the joint family properties, arraigning other members of the joint family as party defendants. That suit was decreed on 12.12.2006 declaring that petitioner is entitled to 1/5th share in the suit schedule property. Petitioner initiated final decree proceeding registered as FDP No. 58/2007.

Respondents 1, 3, 4, 6 and 7 are said to have instituted O.S. Nos. 2826/2007, 2973/2007, 823/2009, 25819/2007 and 4044/2007 before the City Civil Court, Bengaluru, for injunctory relief in respect of certain sites and obtained interim injunctions against petitioner arraigned as defendant. That judgment and decree it is said, is subject matter of pending Regular First Appeals.

Respondent No. 8 instituted O.S. No. 9417/2008 arraigning petitioner as defendant for injunctory relief which was decreed on 06.09.2007 restraining the petitioner from interfering with the enjoyment of the suit schedule immovable property i.e., house list No. 146/1-X-2(No. 2) of Hulimavu village, Beguru Hobli, Bengaluru South Taluk, which, when called in question in RFA No. 2451/2007 was disposed of by order dated 22.09.2010 affirming the said judgment and decree.

Petitioner, on the premise that respondents were proper and necessary parties for a full and final adjudication of the right to immovable property in F.D.P. No. 58/2007, filed I.A. under Order I Rule 10(2) CPC to implead respondents 1 to 8 as party respondents. That application was opposed by filing statement of objections, inter alia pointing out to the aforesaid facts, stating, that they are neither necessary nor proper parties and that they are not parties to the preliminary decree.

The Court below accepting the objections of the respondents, rejected the I.A. by the order impugned.

Sri T.M. Venkata Reddy, learned counsel for petitioner submits that respondents having arraigned the petitioner as party defendant in the suits referred to supra, which are decreed and are subject matter of proceedings in RFAs of which RFA No. 2451/2007 is dismissed, though are for injunctory reliefs and not declaratory reliefs, it is therefore established that respondents have an interest in the immovable property, subject matter of partition and hence, are proper and necessary parties.

Per contra, learned counsel for respondents jointly advance the very same submission as are advanced before the Court below.

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/delivered 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 suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is found to be ''proper'' or ''necessary'' party, the Court has no jurisdiction to implead him against the wishes of the plaintiff. This is the law laid down by the Apex Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, . It is elsewhere said that in exercise of judicial discretion in the matter of jurisdiction under Order I Rule 10(2) CPC, the Court will act according to the reason and fair play and not according to whim and caprice.

On the facts noticed supra, it is abundantly clear that respondents claim to be in possession and enjoyment of the immovable properties subject matter of the suit instituted by the petitioner for declaration, partition and separate possession, while have obtained judgment and decrees for permanent injunction against the petitioner in respect of the suit schedule properties in the suits instituted by them, which are challenged in RFAs, pending, while one of the RFA is disposed of, noticed supra. Therefore, respondents 1 to 8 admittedly have an interest in the immovable properties though it is submitted that the said properties are not the very same suit schedule properties in FDP No. 58/2007 and if any decree is to be passed in the F.D.P. No. 58/2007 in respect of those properties of which respondents 1 to 8 have not sought for declaration of title, it is needless to state that they are ''necessary parties''. The answer to the question, whether the immovable properties subject matter of suits for injunction instituted by the respondents against the petitioner are or not the suit schedule property in FDP No. 58/2007, is not required to be answered at the stage of consideration of an application under Order I Rule 10(2) of CPC to implead parties. Yet again, respondents 1 to 8 are proper parties, since their presence before Court would enable the Court to completely, effectively and adequately adjudicate upon the matters in dispute.

In that view of the matter, the Court below fell in serious error in rejecting I.A. under Order I Rule 10(2) of CPC filed by petitioner, by order impugned, calling for interference. Petition is accordingly allowed. The order impugned quashed. I.A. under Order I Rule 10(2) filed by petitioner is allowed. Respondents 1 to 8 are impleaded as party respondent Nos. 24 to 31.