Vijay Pappu Narayandas Rizwani and Others vs Narayandas Nwalrai Rizwani and Another

Borde R.M., J.—An interlocutory order passed by the trial Court below Exh. 25 in Regular Civil Suit No. 483/07 is subjected to challenge in this petition at the instance of original plaintiffs.

Petitioners/original plaintiffs instituted suit against defendant Narayandas claiming perpetual injunction restraining him, his agent, servant or any other person claiming through him from causing obstruction and interference in possession of the plaintiffs over property bearing CTS No. 3317 "Palki" converted to different municipal numbers, known as Prabhat Talkies, Nanded. According to plaintiffs, their father defendant No. 1 got married second time with one Sonali who is 35 years of age. The marriage is solemnised by defendant No. 1 after death of plaintiffs'' mother. It is further alleged that the second wife of defendant No. 1 is instigating him not to allow plaintiffs and other family members to reside with them at Nanded. However, plaintiffs denied their illegal demand and being annoyed the second wife is instigating defendant No. 1 to cause obstruction and interference in possession of suit property. Plaintiffs claim decree of perpetual injunction not against defendant in person but as against his agent, servant or any other person claiming through him.

An application came to be presented by respondent No. 2 herein seeking her addition as defendant to the suit. Application for impleadment tendered by the second wife Sonali came to be allowed by the trial Court. It is vehemently contended by learned Counsel for the petitioner that the second wife of defendant is neither a necessary nor proper party to the suit. No relief is claimed by the plaintiffs against the lady. It is also contended that her presence before the Court is not warranted for enabling the Court to effectively and completely adjudicate and settle all the questions involved in the suit.

It has been contended by learned Counsel for the respondent that relief is claimed not only against the defendant in person but against his agent, servants or any person claiming through him. It is contended that second wife Sonali is residing with defendant No. 1 her husband. There are allegations made in the plaint to the effect that interference is caused by defendant at the instance of his second wife i.e. the applicant before the trial Court. In these circumstances, it is contended that presence of the applicant second wife is necessary before the Court for proper adjudication of the claim raised.

Learned Counsel for the petitioner has placed reliance on a judgment reported in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , wherein it has been observed thus:

The object of Order 1, Rule 10, CPC is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as party to a suit in the following two cases : (1) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) When without his presence, the questions in the suit cannot be completely decided. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.

Reliance is also placed on judgment delivered by Single Judge of this Court reported in (2003 All Mr. 389) It has been observed thus:

A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject-matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. These are factors which must be taken into account while considering whether the presence of a party is necessary before an effective order is made or is proper for a complete and final adjudication of the suit.

Similarly, petitioners also place reliance on an unreported judgment in Writ Petition No. 2084/06 in support of their contentions.

Shri. Patil, learned Counsel for the respondent has placed reliance on the observations made in paragraph No. 10 of the judgment reported in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , and contended that the Court was within its bounds in permitting the applicant/respondent No. 2 herein to implead herself as party defendant to the proceeding. It is observed by the Apex Court in paragraph No. 10 of the said judgment as:

The power of the Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit. The question is whether the right of a person may be affected if he is not added as party. Such right, however, include necessarily an enforceable legal right.

Considering the facts and circumstances of the case, I am of the considered view that the presence of the applicant, respondent No. 2 herein is necessary for proper adjudication of the issues. Discretion exercised by the trial Court in the matter of impleadment of respondent No. 2 as party to the suit need not be interfered in exercise of writ jurisdiction under Article 227 of the Constitution of India. There is no merit in the petition. Petition stands rejected.

Pending civil application, if any, stands disposed of.