Jagdish Rawat vs Satish Kumar

S.K. Gangele, J.—Heard. This petition has been filed by the petitioner against the order dated 18/5/2013 passed by the Trial Court.

Two grounds have been raised by the counsel for the petitioner while assailing the impugned order, first that the Court below has committed error of law in rejecting the application filed by defendant No. 1 to transpose other defendants No. 2, 3 and 5 to 7 as plaintiffs and second that the court has further committed an error of law in rejecting the application for amendment filed under Order 6 Rule 17 of CPC.

The trial Court rejected the application of the petitioner in regard to transposition of the defendants on the ground that the defendants were not willing to be transposed as plaintiffs.

Order 1 Rule 10(2) of CPC in regard to power of court reads thus:

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.

It is well settled principle of law that the court has ample power to add necessary party or add plaintiff as held by Hon''ble the Supreme Court in the cases of Kiran Tandon Vs. Allahabad Development Authority and Another, and R.S. Madanappa and Others Vs. Chandramma and Another, However, the question is whether a person who is not willing to be added as a plaintiff could be ordered to be added as plaintiff by the court in exercise of its power under Order 1 Rule 10 of CPC. In my opinion, a person or a litigant without his willingness could not be added as a plaintiff because it would be against the well settled principle of law that a person could not be added as a plaintiff against his or her will. I find support in this regard from a judgment of this Court in Mathura Bai and Others Vs. Daryanamal and Others, . In the aforesaid two judgments of the Apex Court relied upon by the counsel for the petitioner, it has not been decided whether a defendant can be added as plaintiff against his will. Hence, in my opinion, the order passed by the trial court in this regard is in accordance with law.

So far as second point is concerned, it is submitted by the learned counsel for the petitioner that while allowing the application under Order 6 Rule 17 of CPC, the transferee purchaser has not been added as a party neither any relief has been sought against him in the plaint. In my opinion, the petitioner can raise this ground before the trial court for dismissal of the suit. With the aforesaid observation, this petition is disposed of with no order as to costs.