Mt. Bindru vs Sada Ram and Others

K.V. Gopalakrishnan Nair, J.—This revision arises out of an application under Order 1 Rule 10(2) of the Code of Civil Procedure. The suit

was for partition and separate possession of certain land and for ancillary reliefs. The Plaintiff based his claim as a collateral of deceased Hatu to

whom the land originally belonged. The Defendants in the suit are the other collaterals of deceased Hatu. The Plaintiff as well as the Defendants

proceeded on the common basis that Hatu died without leaving behind him a widow or lineal descendants. The Defendants resisted the claim of the

Plaintiff on the ground that he was one of the reversioners entitled to claim a share in the property of deceased Hatu. Alternatively, they pleaded

that even if the Plaintiff is a reversioner, his right became extinguished on account of ouster and adverse possession by them.

After the trial of the suit had progressed to its final stage, the Petitioner, Mst. Bindro, came forward with an application under Order 1. Rule

10(2) asking to be impleaded as a party Defendant to the suit on the ground that she is the widow of deceased Hatu. If she is the widow of

deceased Hatu as alleged by her, neither the Plaintiff nor the Defendants in the suit would have any right whatever to the property of deceased

Hatu, as his reversioners. In view of the provisions of the Hindu Succession Act Mst. Bindro may be able to claim that she has become the

absolute owner of the entire property left by Hatu.

The application of Mst. Bindro was resisted by the Plaintiff. The trial court upheld the objection of the Plaintiff and rejected the application. Mst.

Bindro has come up in revision to this Court against the order of the trial court.

It is not claimed on behalf of the Petitioner that she is a necessary party to the suit in the sense that the suit cannot be effectively disposed of

without her presence on the record. She does not come within the purview of the words ""ought to have been joined"" occurring in Sub-rule (2) of

Rule 10 of Order 1. But it is contended on her behalf that her ""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.

The Respondent-Plaintiff urges that the mere circumstance that the Plaintiff does not consent to the impleading of the Petitioner is sufficient

ground and justification for rejecting her application. The Respondent's learned Counsel has relied upon Vaithilinga v. Sadasiva Iyer AIR 1926

Mad 836 for this proposition. No doubt, this decision seems to support the Respondent's stand. But one cannot fail to notice that the view taken in

this decision is much too restricted and narrow to give full play and effect to the somewhat wide provisions of Order 1, Rule 10(2). This decision is

in direct conflict with a later decision of the Madras High Court reported in the Secy. of State v. Murugesa Mudaliar AIR 1929 Mad 443.

An earlier decision of a Division Bench of the Madras High Court consisting of Sir Charles Turner, C.J. and Muthuswami Ayyar, J. reported in

Vydianada v. Sitarama ILR 5 Mad 52 is also in direct conflict with the decision in Official Receiver of South Kanara Vs. Bastiao Souza and

Others, . In Vanjiappa Goundan Vs. N.P.V.L.R. Annamalai Chettiar and Others, , the decision in Secy. of State and Another Vs. M. Murugesa

Mudaliar and Others, was expressly followed. It is unnecessary to notice the several other decisions of the Madras High Court which have

adopted the broader view expressed in Secy. of State and Another Vs. M. Murugesa Mudaliar and Others, .

The two trends of judicial opinion noticed above appears to exist in England also. The Supreme Court in Razia Begum Vs. Sahebzadi Anwar

Begum and Others, has in its majority judgment referred to the two currents of judicial opinion obtaining in India as well as in England.

It appears to me that to make the addition of a party Defendant to a pending suit under the second part of Sub-rule (2) of Rule 10 of Order 1,

CPC depends entirely on the consent of the Plaintiff will defeat the very object of that rule. To say that even if a court is satisfied that the addition

of a new party is necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit, it cannot direct

the addition of that party without the consent of the Plaintiff, would amount practically to abrogating the rule itself. The rule must not be so

construed as to bring about such a result. In Dwarka Nath v. Kishori Lal 11 Cal LJ 426 : 6 Ind Cas 549, Mukerji, J. stated the position as follows:

The question remains, whether he can be joined as a Defendant although the Plaintiff objects to or does not desire the joinder. Now as explained in

the case of Montgomery v. Foy, Morgan, and Co. (1895) 2 QB 321, the court has the power to add a person as Defendant, even though the

Plaintiff objects to such joinder.

It is unnecessary to multiply citations on this point. The better view appears to be that a court is entitled to add a person as a party Defendant to a

suit under the second part of Sub-rule (2) of Rule 10, even though the Plaintiff objects to such joinder.

The question then is whether the Petitioner in the present case should be directed to be added as a party Defendant to the suit as prayed for by

her. This takes us to a consideration of the other requirements of Sub-rule (2) of Rule 10 which authorizes a court to add what is called a proper

party to a suit. The rule itself states that the addition of the party must be to enable the court effectually and completely to adjudicate upon and

settle all the questions involved in the suit. A party cannot, therefore, be added under this rule in order to enable him to import an altogether new

cause of action into the pending litigation. In other words, the addition of the new party must be consistent with the scope and the settling of the

pending litigation.

The presence of the new party must help the court effectually and completely to settle all the questions involved in the pending suit. The nature and

the character of the suit must not be sought to be altered by the addition of a new party. The emphasis should not be so much on the advantage

which the new party may derive by being able to litigate his claim as on the need for a complete and effective adjudication of the questions involved

in the pending suit. Several persons may claim right, title or interest in a certain property, but Sub-rule (2) of Rule 10 does not require nor permit

every one of those persons to be brought on the record in a suit which relates to a particular right or interest in respect of that property claimed by

a person against certain others whom he has joined as Defendants to that action.

A new party who seeks to come in must fit into the scheme of the pending litigation and not stand altogether out of it with a claim which is distinct

and different from the claim sought to be litigated in the pending suit or which is antegonistic to both the parties in the pending suit. In this

connection I may refer to the criteria pointed out in Naraini Kuar v. Durjan Kuar ILR All 738. At page 742 Straight, J. in construing the words

'enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit' observed:

But it seems to me that, in exercising the very wide discretion given by these later words, regard should be had to the terms of Sections 28 and 29,

and the test as to the joinder of Defendants should be whether the relief sought is 'in respect of the same matter' or the liability alleged to exist

relates to 'any one contract.'

Again at pp. 743 and 744 he stated:

But now reading, as I think one should, Sections 28, 29 and 32 of Act X together, the term 'questions involved in the suit' must be taken to mean

questions directly arising out of and incident to the original cause of action, in which, either in character of Plaintiff or Defendant, the person to be

joined has an identity or community of interest with that party in the litigation on whose side he is to be ranged. I do not lay this down as an

irrefragable rule by which applications u/s 32 of Act X should be determined; for cases may arise similar to Saroda Pershad v. Kylash Chunder 7

SWR 315 and Kali Prasad Sing v. Jainarayan Roy 3 BLR AC 23 but in the multitude of instances it will be a useful test to apply in deciding

whether the presence of parties is necessary to enable the court 'effectually and completely to adjudicate and settle the questions involved in the

suit.'

It is not possible nor profitable to attempt to formulate hard and fast rules governing the addition of parties under. Order 1 Rule 10(2) to enable

the court effectually and completely to adjudicate upon the questions involved in the suit. Each case will have to be determined on its own facts as

pointed out in the majority judgment of the Supreme Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others, . Some tests may, however,

be pointed out. It would be an exercise of proper discretion to add as parties to the suit such persons as would be bound or vitally affected by the

judgment to be given in the pending action. In the case decided by the Supreme Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others,

the persons who applied to be impleaded as party Defendants to the suit were found to be persons who would be bound or directly affected by

the judgment in that suit. This appears from the following passage in the majority judgment:

It is equally clear that not only the Prince is directly affected by the declaration sought, but his whole family, including Respondents 1 and 2, and

their descendants are also affected thereby.

(Page 893)

At page 895 occurs the following passage:

That being so, a declaratory judgment in respect of a disputed status, will be binding not only upon the parties actually before the court but also

upon the persons claiming through them respectively.

The decision of the Privy Council, Esquimalt and Nanaimo Railway Co. v. Wilson 1920 AC 358 : AIR 1919 P C 225 was also in a case

where the interest of the party sought to be added, namely, the Crown, would have been affected in the event of judgment for Plaintiff. At p. 363

(of AC): (at p. 228 of AIR) Lord Buckmaster pointed out:

It is quite true that the title of the Crown to the land in question is not in controversy; nor is the Crown asked to do any act or grant any estate or

privilege, but in the event of the Plaintiff's success, the rights existing in the Crown and consequent upon the grant to the Respondents will cease. If

these interests lay in a third party, he ought certainly to be added as Defendant, and that is the best means of testing the necessity of the attendance

of the Crown.

Again it will be a proper exercise of discretion to add a party, if his presence is absolutely necessary to further the case set up by a party to the

pending suit, much more so to enable him to establish it. Cases where the plea of justertii is set up can broadly be stated to fall in this class.

(1895) 2 QB 321 may be cited as illustrating yet another proposition. That was an action brought by a ship owner against the shipping agents.

The ship owner was not paid his freight by the shipping agents; so he put the cargo in the warehouse with notice that it was subject to lien for

freight. The agents thereupon deposited the amount under protest. The ship owner sued for the deposit. Then the shippers who were the real

owners of the cargo and for whom the shipping agents had acted asked to be impleaded as party Defendants to the suit, as they had counter-

claims against the Plaintiffs for damages for short delivery and injury to the cargo.

Lord Esher ruled that where there is one subject matter out of which several disputes arise, all parties may be brought before the court and all

those disputes may be determined at the same time without the delay and expense of several actions and trials. Kay L.J. agreed on the ground that

if there had been two separate suits they would have been tried together. Smith L.J. justified the addition of the shippers as party Defendants to the

action on the ground that the whole matter in dispute arose under one contract of affrightment.

It also appears from the facts of the case that had the shippers who were the owners of the cargo not been impleaded in the suit, the shipping

agents who were the original Defendants to the action would have no defence whatever to make in respect of the Plaintiffs' claim. This decision can

well be considered to be authority for the position that when disputes arise out of one contract or one transaction or one subject matter, it will be

proper to implead all the persons who are parties to the contract or to the transaction, or who are directly concerned with that subject matter. But

the subject matter of a suit cannot always be understood as the property to which that suit relates.

The subject matter has to be ascertained with reference to the cause of action on which the suit is founded, the rights which the parties litigate and

the matters which the litigation properly comprehends. Thus, if A sues B for arrear of rent or eviction on the basis of a lease executed in his favour

by B, it will not be proper to allow C who claims absolute title to the property which is not recognized either by the Plaintiff or the Defendant to be

impleaded as a party Defendant under Order 1 Rule 10(2) so as to enable him to litigate his paramount title to the property in that suit.

In such a case, the title which C claims and which is not recognized by either of the parties to the suit cannot be said to be a dispute arising out of

the subject matter of that suit. The proper course for C will be to bring a separate suit to establish his title and seek his relief.

The scope of the pending litigation must not be lost sight of in deciding whether it will be proper to add a new party under Order 1 Rule 10(2).

For instance, in a suit for specific performance of a contract for sale, the necessary parties are the parties to the contract or if they are dead, their

legal representatives as also persons who had purchased the property from the vendor after the contract. A person who claims adversely to the

vendor is not, however, a necessary party. (Please see Prem Sukh Gulgulia and Another Vs. Habib Ullah and Others, .

In N.T. Palanisamy Chettiar by agent V.D. Seetarama Mudaliar Vs. Komara Chettiar and Others, , the Plaintiff sued for specific performance

of an agreement to sell impleading only the vendors and there was no allegation in the plaint that the agreement was binding on the sons of the

vendors. But the sons of the vendors sought to get themselves impleaded on the ground that they had title to the property agreed to be sold. It was

held that they could not be joined as parties merely for avoiding multiplicity of suits. As the suit was one for specific performance of an agreement

to sell and as the title of the persons who sought to intervene in the suit was not in question, it was not proper to implead them with a view to get

their claim of title decided.

Another somewhat useful test for deciding whether it will be proper to add a new party will be to see whether after his joinder the main

evidence in the suit and the main enquiry will remain the same as before his coming in. In Byrne v. Brown (1889) 22 QBD 657, Lord Esher stated

thus:

It is not necessary that the evidence on the issues raised by the new parties being brought in it should be exactly the same, it is sufficient if the main

evidence and the main enquiry will be the same.

In the instant case, the Petitioner seeks to come in to fight not only the Plaintiff but also the Defendants in the pending suit. The common basis

on which the suit proceeded all along is that deceased Hatu did not leave a widow or a child surviving him. The Plaintiff and the Defendants

therefore agreed that the property of the deceased Hatu should go to his collaterals. The dispute was only as to whether the Plaintiff was a

collateral of the deceased Hatu and whether the Plaintiff's right had become extinguished on account of ouster and adverse possession, in such a

suit, the Petitioner who claims to be the widow of Hatu does not seem properly to fit in.

Her claim is, so to speak, paramount to that of the Plaintiff and the Defendants in the pending suit. It is difficult to say that her presence in the array

of parties is necessary to effectively or completely adjudicate upon settle any dispute which arises out of the subject matter of the pending suit, that

is to say, any question involved in the present suit. Her coming, in will change the entire nature of the suit, it will import into the litigation a new

cause of action against both the Plaintiff and the Defendants. The embarrassment of the parties will be to fight each other and at the same time to

fight jointly the new comer. If the Petitioner is made a party to the suit, the basis of the litigation will change, the evidence so far adduced in the suit

will become to a large extent irrelevant and the main controversy in the suit will shift and become essentially one between herself on the one side

and the Plaintiff and the Defendants put together on the other.

The result of the pending suit cannot in any way affect the Petitioner, if she is not impleaded as a party. She is entitled to bring a separate suit

and week to get it declared that she as the widow of deceased Hatu is absolutely entitled to the property left by Hatu and claim to recover

possession from the persons in wrongful possession and enjoyment of the property.

There is also another aspect. The Petitioner has come with an application to be added as a party at a very late stage. All the evidence in the

suit has already been recorded and the suit is very near its end. If she is brought into the litigation at this stage, the suit will have to be heard afresh.

It will in effect be a new suit. A party who comes at such a belated stage need not be impleaded as a party in a litigation which has progressed so

considerably.

There is yet another fact which is germane to this inquiry. The counsel for the Petitioner as well as the counsel representing the Plaintiff and the

Defendants stated at the bar that Hatu died about 20 years ago. It does not appear that the Petitioner who now claims to be his widow took any

steps to get at the property of deceased Hatu. My attention has not been drawn to anything which would prima facie indicate that the Petitioner is

in truth the widow of deceased Hatu. Merely because a person comes forward and claims a particular right or status, it is not necessary to exercise

discretion in his favour by directing him to be impleaded as a party to a pending suit.

If it were otherwise, any frivolous claim can be put forward by any person at the fag-end of a protracted litigation with a view to lengthening it out

further to the detriment of one party or the other or both. Before directing a party to be impleaded, a court can properly demand that it should be

prima facie satisfied about the bona fides of the applicant, about the plausibility of his claim, and about the genuineness of his interest in the

litigation. It would otherwise be impossible to shut out or check frivolous and mala fide applications.

In the instant case, there is nothing to indicate even faintly that the application is bona fide and not just frivolous. There is thus more than one reason

for not impleading the Petitioner as a party Defendant to the suit. Neither on facts, nor on principle, nor on authority am I satisfied that the order of

the lower court rejecting the Petitioner's application under Order 1 Rule 10(2) ought to be interfered with.

In the result, the application is dismissed with costs of the Plaintiff-Respondent.