Krishnamma vs Basheer And Ors

The petitioner is the plaintiff and the first and the second respondents are the defendants in the suit O.S.No.415/2004 on the file of the Munsiff's

Court, Kollam. The third and the fourth respondents are the persons who were sought to be impleaded by the plaintiff as additional defendants in the

suit.

The suit is instituted for granting a decree for recovery of possession of property from the defendants. The defendants filed written statement in the

suit. One of the contentions raised by them is that a portion of the disputed property stands in the name of the wife of the second defendant.

The plaintiff filed an application as I.A.No.1288/2014 (Ext.P4) under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short 'the Code')

for impleading the third and the fourth respondents, who are the wife and son of the second defendant, as additional third and fourth defendants in the

suit. The plaintiff also filed another application as I.A.No.1287/2014 (Ext.P5) for removing the suit from the special list for the trial of the cases.

As per Ext.P7 order, the trial court dismissed Ext.P4 application. As per Ext.P8 order, the trial court also dismissed Ext.P5 application.

The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Exts.P7 and P8

orders.

Inspite of service of notice on them, the respondents have not entered appearance. Heard learned counsel for the petitioner.

Ext.P5 application for removing the suit from the special list was filed by the plaintiff for the reason that she had filed Ext.P4 application for

impleading additional defendants in the suit. Since Ext.P4 application was dismissed by the trial court, it rightly dismissed Ext.P5 application as per

Ext.P8 order. There is no reason to interfere with Ext.P8 order, especially when Ext.P5 application has become infructuous.

The operative portion of Ext.P7 order reads as follows:

“Petitioner's case is that the defendant's property was transferred to his wife and son and the petitioner came to know about this only after listing

the suit for trial. But it is evident from case records that the defendants 1 & 2 filed written statement in the suit as early as on 25-09-2004 and the

defendants had raised a contention that the defendant transferred a portion of his property to his wife. The petitioner's case that she came to know

about the transfer of the property only after listing the suit for trial is absolutely false. The petitioner has approached the court for a relief based on a

false case. Hence IA is dismissed.â€​

The defendants had filed written statement in the suit as early as on 25.09.2004. The written statement contained a specific recital regarding the

transfer of the property in the name of the wife of the second defendant. Ext.P4 application for impleading additional defendants in the suit was filed

by the plaintiff only in the year 2014, ten years after the filing of the written statement by the defendants, that too, with a plea that she came to know

about the transfer of the property only when the suit was listed for trial in the year 2014. Evidently, the reason stated by the plaintiff for filing the

application for impleading at a belated stage, is not correct, if not false. The trial court has rightly held so while dismissing Ext.P4 application.

However, it is not the end of the matter. The fact remains that, as per the written statement filed by the defendants, the wife of the second

defendant is the owner of a portion of the disputed property. In such circumstances, the questions, whether she is a necessary party to the suit and

whether the suit could have been proceeded with and effectually disposed of without her presence, arise for consideration. The trial court has not

adverted to these aspects. If the wife of the second defendant is a necessary party to the suit, the trial court could have even suo motu impleaded her

as additional defendant in the suit.

Order 1 Rule 10(2) of the Code provides that, 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.

The aforesaid provision makes it clear that a Court may, at any stage of the proceedings, 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 (See Baluram v. P.Chellathangam : AIR 2015

SC 1264).

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 dispute in the suit, though he

need not be a person in favour of or against whom the decree is to be made.

The provision contained in Order 1 Rule 10(2) of the Code is not about the right of a non-party to be impleaded as a party, but about the judicial

discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under this provision can be exercised either suo motu or

on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party

who is improperly joined. The Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such

deletion or addition can be without any conditions or subject to such terms as the Court deems fit to impose. In exercising its judicial discretion under

Order 1 Rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice (SeeM umbai

International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd : AIR 2010 SC 3109).

In the instant case, there is no material before the court to find out what happened after the trial court refused to remove the suit from the list. It is

not known whether the suit is still pending. Learned counsel for the petitioner has not been able to give a clear picture before this Court on these

aspects. Therefore, I find that the trial court has to reconsider the matter and take a decision as to whether it is a fit case in which it shall exercise its

jurisdiction to suo motu implead any necessary party to the suit to avoid multiplicity of proceedings and to have an effective adjudication of the dispute

in the suit.

Consequently, the original petition is allowed and Ext.P7 order is set aside. If the suit is still pending, the trial court shall reconsider the matter and

it shall decide whether it is a fit case in which it shall suo motu exercise its discretion to add or implead additional defendants in the suit to have an

effective adjudication of the dispute in the suit and to avoid multiplicity of proceedings.