Ramswaroop vs Smt. Bejanti Bai and Another

Sujoy Paul, J.—The respondent No. 1/plaintiff filed a suit for declaration and permanent injunction (Annexure P/2). It is stated in the suit that plaintiff and defendant No. 2 are real sisters, whereas defendant No. 1 is the mother of plaintiff and defendant No. 2. The father of the plaintiff Shri Devi Dayal expired on 29.03.1979. Devi Dayal by way of registered will dated 22.01.1979, gave the property to the plaintiff. The plaintiff is residing in the house and is in possession of house after the death of Devi Dayal. It is the case of plaintiff that after the death of Devi Dayal she being the successor and daughter is entitled to enjoy the property and a declaration needs to be issued in this regard. During the pendency of suit, the present petitioner preferred an application under Order 1 Rule 10 C.P.C. (Annexure P/4). The Court below rejected the said application by impugned order 01.11.2012. This order is under challenge in this petition filed under Article 227 of the Constitution.

Shir Sanjay K. Mishra, learned counsel for the petitioner, urged that the defendant No. 1/Smt. Ram Bai cancelled the earlier will and by registered will dated 28.07.1997 gave the property to the petitioner/applicant. The name of petitioner is duly mutated in the record of Vidisha Municipality. It is further stated that the petitioner is in possession and residing in the said house. Shri Mishra submits that the Court below has erred in rejecting the said application. Petitioner is a necessary party and therefore, Court below should not have rejected the application.

Shri Vivek Jain, learned counsel for the respondent No. 1, supported the order and submitted that there is no legal infirmity which warrants interference by this Court under Article 227 of the Constitution.

I have heard learned counsel for the parties and perused the record.

It is not in dispute that petitioner is the son of plaintiff. As per petitioner''s contention, the defendant No. 1 Ram Bai executed a registered will on 28.07.1997 and gave the property to the petitioner. Petitioner is accordingly became owner of the property and he is in possession. It is further stated that in the relevant record of Municipality, his name is also mutated. In this factual backdrop it is to be seen whether the Court below has rightly disallowed the said application? The Court below has held that if the plaintiff has not impleaded the petitioner, he will face ultimate consequences of it. Apart from this, it is mentioned that he is not a necessary party.

No doubt, the plaintiff is the dominus litis and may choose the person against whom he wishes to litigate and cannot be compelled to sue persons against whom he does not seek any relief. Normally a person who is not a party has no right to be impleaded against the wishes of the plaintiff. However, this is trite that this general rule is subject to the provisions of Order 1 Rule 10(2) C.P.C. by which the Court is given discretion to add as a party, any person who is found to be a necessary party or proper party.

The Apex Court in Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, made it clear as to who will be "necessary party" or "property party", relevant portion reads as under:-

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 mattes in dispute in the suit, though he need not to be a person in favour of or against whom the decree is to be made. If the person is not found to be a proper or necessary party, the court has no justification 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.

In the light of aforesaid principle laid down, if facts of present case are tested, it will be clear that petitioner is a necessary party. The plaintiff and petitioner both are claiming that being successor or because of will they are owner and are in possession. The suit property is same. Thus, in my view, no effective decree could be passed in absence of impleadment of the present petitioner. Thus, the Court below has erred in not allowing the application in question. The petitioner being a necessary party needs to be impleaded for the reasons stated above. Petition deserves to be allowed. Impugned order is accordingly set aside. The application preferred under Order 1 Rule 10 C.P.C. is allowed. The Court below is directed to proceed from that stage in accordance with law. No Costs.