V.M. Subramani and Others vs Arulmugu Bhavanarayanasamy Temple

S.S. Subramani, J.—All these revisions are filed by defendant in the respective suits. Four suits were filed by respondents 1 to 5 herein for

evicting the Defendant in the suit with arrears of rent.

It is alleged in the plaint that the property belonged to Aruimigu Bhavanarayanasami temple and the same was let out to defendants under rental

arrangements. It is further stated that they are irregular in paying the rent. Notice was issued to defendants to settle the arrears and also to vacate

the premises. The same was not complied with, which necessitated filing of the suits.

Revisions petitioners filed written statement denying the title of plaintiffs and alleged that some third parties are the real owners and they are

paying rent to them.

After filing written statement, defendants filed an interim application before the court below to implead the third parties as additional parties to

the suits. Those applications were dismissed by the court below which is challenged in this revision petitions.

Under Order 1, Rule 10 of Code of Civil Procedure, a person can be impleaded, who is found to be necessary or proper party. But, even while

considering the application for impleadment objection of plaintiff also should be considered since plaintiff is dominus lite in the suit.

Mulla on CPC (15th Edition), commenting on Order. 1, Rule 10 on the basis of decided cases, has extracted the following passage from

Sampatbai and Another Vs. Madhu Singh Gambhirji, , which read thus:

The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff

or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the

relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights. It is not enough that the plaintiff''s right, and rights which

the person desiring to be made a defendant wishes to assert should be connected with the same subject-matter. The intervener must be directly

and legally interested in the answers to the questions involved in the case. A person is legally interested in the answer only if he can say that it may

lead to a result that will affect him legally that is by curtailing his legal rights. That is the test which has been applied in Amon v. Raphael Tuck and

Sons Ltd. (1956)1 All E.R. 273, in connection with R.S.C. Order 16 Rule 11, which is similar to Order 1, Rule 10, C.P.C.

[Italics supplied]

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , their Lordships considered this question and

interpreted the words, ""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,"" as occurring in Order 1, Rule 10 of Code of Civil Procedure. Their Lordships went on and

said that merely because plaintiff opposes joining of party, he being dominus liti may not be a relevant consideration if in fact third party''s rights are

likely to be affected by the decision of the case. After making a distinction between suits relating to property and suits of declaration as regards

status of legal character, in para 14 of the judgment, their lordships held thus:

14, It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears

to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a

party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would

only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of

relevant argument to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by

the result of the action and the question to be effectually and completely settled unless he is a party. The line has been drawn on a wider

construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be

directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by

curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own

cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., wherein after quoting the observations of Nyon-Parry,

J., in Dollfus Mieg et Co. S.A. v. Bank of England, that their true test lies not so much in an analysis of what are the constituents of the applicants''

rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:

The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.

[Italics supplied]

The above decision was followed by Honourable Supreme Court in a very recent decision reported in Savitri Devi Vs. District Judge,

Gorakhpur and Others, . In that case, their Lordships followed the decision in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of

Greater Bombay and Others, and further held that the person concerned must have direct control in the case. Their Lordships further reiterated the

principles that the person who is seeking to get himself impleaded must have direct action as declared in Razia Begum Vs. Sahebzadi Anwar

Begum and Others, . In paragraphs 9 to 11 of the judgment their Lordships held thus:

Order 1, Rule 10, C.P.C. enables the court to add any person as a party at any stage of the proceedings if the person whose presence before

the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit.

Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code.

In Khemchand Shankar Choudhari v. Vishnu Hari Patil this Court held that a transferees pendente lite of an interest in an immovable property

which is the subject-matter of a suit is a representative in the interest of the party from whom he has acquired that interest and has a right to be

impleaded as a party to the proceedings. The court has taken note of the provisions of Section 52 of the Transfer of Property Act, 1882 as well as

the provisions of Rule 10 of Order 22, C.P.C. The Court said:

It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies

to be impleaded as a party and to be heard, he has got to be so impleaded and heard.

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , this Court discussed the matter at length and

held that though the plaintiff is a dominus litis and not bound to sue every possible adverse claimant in the same suit, the court may at any stage of

the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of

a particular case. The court said: (S.C.C. p.529, para 8).

The case really turns on the true construction of the rule in particular the meaning of the words ''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.

The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of

a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter

of the existing action, the court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity

of action.

The court also observed that though prevention of actions cannot is said to be the main object of the Rule, it is a desirable consequence of the

Rule. The test for impleading parties prescribed Razia Begum Vs. Sahebzadi Anwar Begum and Others, , that the person concerned must be

having a direct interest in the action was reiterated by the Bench.

[Italics supplied]

I feel that the relevant portion in Razia Begum Vs. Sahebzadi Anwar Begum and Others, is also to be incorporated in this order so as to have a

completeness about the law declared by Honourable Supreme Court in this regard. In para 13 of the judgment, their Lordships summarised the

scope of Order 1, Rule 10 of Code of Civil Procedure, which read thus:

As a result of these considerations, we have arrived at the following conclusions:

(1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one or initial jurisdiction of

the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case but in some cases, it

may raise controversies as to the power of the court, in contradictions to its inherent jurisdiction, or, in other words, of jurisdiction in the limited

sense in which it is used in Section 115 of the Code;

(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a

commercial interest in the subject-matter of the litigation;

(3) where the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be

relaxed in a suitable case where the court is of the opinion that by additing that party, it would be in a better portion effectually and completely to

adjudicate upon the controversy;

(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the

Specific Relief Act;

(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by

the defendant, if the court has reasons to insist upon a clear proof apart from the admission;

(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually

before the court, but generations to come, and in view of that consideration, the rule of ''present interest'' as evolved by case law relating to

disputes about property does not apply with full force; and

(7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicala. It is narrower in one sense and wider in another.

On the basis of these settled legal principles, let us consider whether the impugned order requires interference u/s 115 of Code of Civil

Procedure?

The suit is filed by the plaintiff for recovery of the building on the allegation that the defendant had defaulted in payment of rent and therefore

not entitled to occupy the building. Since the allegation is that plaintiff and defendant are lessor and lessee, the only question which requires

consideration is whether there is agreement of lease either oral or documentary. Even if plaintiff has no title over the property, if in fact it has leased

out the property to defendant, it is entitled to file suit for recovery of possession if the cause of action is proved. In such cases, a third party cannot

get himself impleaded and issue in the suit is not to be enlarged. The question whether third parties are necessary or proper parties will have to be

considered taking into consideration the allegation in the plaint and the cause of action. The legal right of the person sought to be impleaded must

be taken into consideration on the basis of those allegations in the plaint and if on the basis of plaint allegation their legal rights are affected, they

become necessary parties. If it is found that the lease arrangement pleaded by the plaintiff is not true or cannot be proved, the suit can only be

dismissed. Even if third parties are impleaded, if it is found that lease arrangement is true and possession of defendant is only as tenant and they

have defaulted in payment of rent, the suit can only be decreed. Either way, the presence of third parties is not necessary for proper adjudication of

the case. The alleged legal right of the third parties also is not going to be affected.

In such cases, the only question that requires consideration is whether the right of person is legally to be affected if he is not added as party.

Even if he got a claim over the property but his rights are not affected, he will not be necessary or proper party in the suit.

Reliance was placed by learned Counsel for petitioner in the decision reported in R. Tulasi Vs. Hamed Bi and Others, and P.R. Nallathambi

Goundan Vs. Vijaya Raghavan and Others, . In the first case, the suit is one for declaration of title and recovery of possession where the rival title

holder claimed absolute title over the property. In the facts and circumstances of the case, their Lordships said that the rival title holder can also be

impleaded as proper party. Even in that case, their Lordships did not say that the rival title holder is a necessary party. In fact that was not a point

in issue in that case. The main question that was raised for consideration was whether an impleading application by third party claiming title, could

be dismissed on the ground that he has no title at all. Their Lordships held that in that application, case cannot be decided on merits and set aside

the order. The decision has no application to the facts of the case.

The second decision also has no application to us and according to me the decision goes against petitioner. In para 14 of the decision reported

in Souriyar and Others Vs. N. Shanmugasundaram Pillai and Another, , their Lordships held thus:

...It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eo nominee a party to the litigation, shall

be denied an opportunity to draw the attention of the court to some step, which seeks to prejudice his interests behind his back. In all such cases, it

is the plaint duty of the court to implead the parties concerned either under Order 1, Rule 10, or in exercise of its undoubted, inherent power u/s

151, Civil Procedure Code?"" In that case their Lordships found that even a person bound by the judgment in spite of the fact that he is not a party,

he has to be impleaded. The said decisions are in accordance to the law declared by Honourable Supreme Court.

Lower court has rightly held that the issue in the suit is very much limited and the third parties need not be impleaded in the suit.

In the result, the revision petitions are without any merits and consequently, the same are dismissed. No costs. Connected C.M.Ps. are also

dismissed.