Smt. Meera Rani and Others vs Ghanshyam Sharma and Others

A.K. Shrivastava, J.—By this petition under Article 227 of the Constitution of India, the petitioner is challenging the pregnability of the impugned order (Annexure P-8), dated 28-9-04 passed by the Additional Civil Judge Class I, Ashoknagar in Civil Suit No. 665-A/1998 whereby the application under Order 1 Rule 10 (2) of CPC filed on behalf of the defendant Nos. 1 and 2 has been allowed and Smt. Sunita and Dr. Sushil Kumar Viswas have been directed to be impleaded as defendants.

It has been vehemently contended by Shri Aniket Nayak, learned Counsel for the petitioners that plaintiff is: dominus litus and he cannot be forced to implead a particular person as a party against whom he does not want any relief and therefore the Trial Court erred in substantial error of law and has also acted illegally with the material irregularity in allowing the application filed under Order 1 Rule 10 (2) of CPC. To bolster his contention, learned Counsel for the petitioners has placed heavy reliance on the decision of this Court in Baijnath v. State of M.P. and Ors. 1972 MPLJ 11.

On the other hand, Shri H.K. Shukla, learned Counsel appearing for the defendants/respondents, has submitted that as per the case of the plaintiff, Sunita who has been directed to be arrayed as party as defendant in the civil suit is dead. However, indeed, she is alive and if that is the position, the learned Trial Court did not err in directing the plaintiff to implead Smt. Sunita Viswas and Dr. Sushil Kumar Viswas as party to the suit as defendants. In support of his contention, learned Counsel heavily placed reliance on the provision of Order 1 Rule 10 of CPC.

Having heard the learned Counsel for the parties, I am of the view that this petition deserves to be allowed.

On going through the averments made in the plaint (Annexure P-3), it is gathered that the plaintiff has sought decree for declaration, permanent injunction as well as for possession against defendant Nos. 1 and 2, i.e., Ghanshyam Sharma and Chironji Lal.

The question of impleadment of a party is to be decided on the touchstone of Order 1 Rule 10, CPC, which provides that only a necessary or proper party may be added. Thus, mere interest of a party in the suits of litigation cannot be a true test for being impleaded as party. I may further add that the object of Order 1 Rule 10, CPC is not to change the scope or character of the suit by addition of new parties and to enable them to litigate their own independent claims but simply to hold them to avoid unnecessary litigation which might otherwise become necessary.

The question whether a person is a necessary or proper party should be ascertained and decided on the basis of averments made in the plaint.

The Full Bench of this Court in the case of Pnnna and Anr. v. Jeewanlal and Anr. 1976 JIJ 84, has laid down the test for determining whether a party is a necessary party are:

(i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question.

(ii) It should not be possible to pass an effective decree in the absence of such a party.

The plaintiff is the dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. The plaintiff cannot be required to change the nature of his suit on the ground that the addition of a party is necessary to avoid multiplicity of suits.

On the basis of elucidated position of the law, it is luminous clear that the petitioner is dominus litus and he cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. The plaintiff cannot be required to change the nature of his suit on the ground that the addition of a party is necessary to avoid multiplicity of suits. On going through the relief Clause of the plaint, it is gathered that a decree of declaration of title, injunction and possession has been sought by the plaintiff only against defendant Nos. 1 and 2, i.e., Ghanshyam Sharma and Chironjilal and there is nothing on record in order to hold that any effective decree cannot be passed in favour of the plaintiffs/petitioners in absence of Smt. Sunita Viswas and Dr. Sushil Kumar Viswas. In this view of the matter, I am of the view that the Trial Court acted illegally in exercising its jurisdiction while allowing the application filed on behalf of the defendants to implead those two persons namely Smt. Sunita Viswas and Dr. Sushil Kumar Viswas as defendants to the suit. In this context, I may also profitably rely the decision of Baijnath (supra), placed reliance by learned Counsel for the petitioners.

The contention of Shri Shukla, learned Counsel for the defendants that indeed Smt. Sunita is alive who has been stated to be dead by the plaintiff. Be that as it may. The defendants shall be free to lead evidence in that regard, if they so chooses to rebut the contention of the petitioners in that aspect. I may further add that a person should not be added as a defendant merely because he would be incidentally affected by the judgment. As already held that the main consideration is whether his presence is necessary to enable the Court to effectively and completely adjudicate upon the question involved in the suit.

For the reasons assigned hereinabove, the impugned order is hereby set aside. The petition is allowed with costs. Counsel fee Rs. 500/- if pre-certified.