Gujarat High Court
Mahechchha Corporation And Ors. vs Bhagwandas Dayaram And Ors. on 28 February, 1994
Equivalent citations: AIR1995GUJ22, AIR 1995 GUJARAT 22
ORDER C.V. Jani, J.
1. This Revision Application filed by the original plaintiffs under Section 115 of the Code of Civil Procedure is directed against the order passed by the learned Civil Judge (S.D.), Surat below defendants' application Exh. 59 for impleading 31 specified persons as plaintiffs and also consequential orders passed by him below application Exh. 61 filed by the defendants and rejecting the plaintiffs' application Exh. 65 for review of the said orders.
2. The applicants have filed Special Civil Suit No. 586 of 1987 in the Court of Civil Judge (S.D.), Surat for specific performance of the agreement for sale of the suit property dated 1-3-86 executed by the opponents-defendants. One of the averments made in the plaint was that 34 plots had already been booked and possession thereof had been delivered to different persons.
3. In this suit, the opponents-defendants submitted an application Exh. 59 for joining 31 specified persons as co-plaintiffs on the ground that these 31 persons had trespassed into the suit property on 18-4-89 at the instance of the plaintiffs. On the same day, the learned Civil Judge(S.D.) granted the application and passed order for joining the specified 31 persons as plaintiffs Nos. 4 to 34. Again on the same day, the defendants submitted another application Exh. 60 for an interim injunction restraining the proposed plaintiffs Nos. 4 to 34 from entering into the suit land. The learned Civil Judge passed an order directing these 31 persons and to maintain status quo. The plaintiffs, therefore, submitted the application Exh. 65 for setting aside orders below Exhs. 59 and 60 which had been passed without hearing the opponents or their advocate. This application for review was also rejected by the learned Civil Judge. These orders below applications Exhs. 59, 60 and 65 are being challenged in this Revision Application.
4. Ms. V. P. Shah, learned advocate appearing for the applicants, submits that the defendants who were necessary parties in the suit for specific performance of the agreement of sale executed by them were already on record of the suit and the 31 persons who were sought to be added were not parties to the agreement on the basis of which the suit had been filed. She therefore, submitted that the defendants adopted absolutely a novel device for obtaining interim relief against these 31 specified persons in a suit which had not been filed by them. In any case, according to Ms. Shah, this was the first instance in the history of litigation wherein the defendants had applied for joining certain third parties as plaintiffs and the Court had granted such an application.
5. There is great substance in the submissions of Ms. Shah. It is a settled principle of law that the plaintiff is the master of the litigation initiated by him. He is dominus litis and he cannot be compelled to wage war against somebody with whom he does not want to fight. The Court has tried to see support from the provisions of Order 1, Rule 10 of the Code of Civil Procedure. Sub-rule (2) of the said Rule enables the Court to pass an order that the name of any person who ought to have been joined whether as plaintiff or defendant, or 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 be added. Obviously, in the present case, the questions involved in the suit are regarding execution of the agreement of sale and implementation of its terms. The proposed plaintiffs Nos. 4 to 34 were not parties to the agreement of sale and no interim relief for specific performance can be granted against them by the trial Court. If at all, the Court comes to the conclusion in a given case that the presence of a third party is necessary for deciding the questions involved in the suit, he can be joined as a defendant if he is either necessary or proper party, but never as a co-plaintiff unless the interests of the plaintiff on record and such third parties are common interests and those third parties also claim the same relief against the defendants. In Razia Begum v. Anwar Begum, AIR 1958 SC 886, it was laid down that in a suit relating to property, in order that a person may be added as a party his should have a direct interest as distinguished from a commercial interest in the subject matter of litigation. In Rasiklal v. Natverlat, AIR 1975 Gujarat 178, this High Court has held that when the parties to the agreement for sale were only the plaintiff and the defendant, and the only relief claimed was for specific performance of the agreement for sale, the sisters of the defendant against whom no relief was claimed could not be directed to be joined as parties to the suit since they were not necessary parties, even if they claimed that they were entitled td inherit the suit property under the provisions' of Hindu Law. In Fatesinhrao Gaikwad v. Savjibhai Patel, 1984 GLH 883, another learned single Judge of this Court reiterated the well settled principle of law that the plaintiff is the master of his suit. He is dominus litis. He cannot be compelled to fight against a person against whom he does not wish to fight. In Ramesh Hiranand Kundanmal v. The Municipal Corporation of Greater Bombay, 1992 (2) JT SC 116, it was laid down that if joinder of a party as a defendant would embarrass the plaintiff and issues not germane to the suit would be required to be raised, it cannot be permitted simply because fresh round of litigation can be avoided and no parties can be ordinarily added against wishes of the plaintiffs and only necessary or proper parties can be directed to be added.
6. All these cases relate to orders of tne Court wherein third parties were permitted to be added as defendants. The case in which third parties are sought to be added as plaintiffs at the instance of the defendants would stand on a much stronger footing.
7. A third party cannot be ordered to be added as a co-plaintiff without the original plaintiff's consent, except when the original plaintiff in a representative capacity wants to abandon the cause by withdrawing the suit and such a withdrawal is likely to affect third parties also. It is therefore, obvious that the trial Court's order dated 21-4-89 for impleading the specified 31 persons as plaintiffs Nos. 4 to 34 suffered from jurisdictional error. Even this order was not implemented by amending the cause title of the plaint. Yet on the very date the trial Court committed another jurisdictional error by issuing interim injunction directing the proposed plaintiffs to maintain status quo. Thus the orders passed by the trial Court below applications Exhs. 59 and 60 deserve to be quashed and set aside.
8. It is submitted by Ms. K. A. Mehta that even if the order for impleading 31 specified persons as co-plaintiffs may be erroneous, the Court can always pass another order for impleading them as defendants in the suit, if they are proper parties, since according to the defendants, these 31 specified persons had tried to trespass into the suit property and create vexing questions of disputed possession; and since the plaintiffs themselves in their plaint had averred that 34 plots had been already booked and possession of these plots had been handed over, the 31 specified persons must be held to be proper parties and should be joined as defendants. No doubt the Court has jurisdiction to pass an order for adding name of any other person whose presence before the Court may be found necessary in order to enable the Court effectually and completely to adjudicate a point and settle all the questions involved in the suit. Ms. Mehta has submitted that though the suit is for specific performance of an agreement of sale also involves delivery of possession, apart from execution of a registered document.
9. Since the original plaintiffs have challenged only the orders passed by the trial Court below applications Exhs. 56 and 60 and that challenge is being answered in their favour, this court does not propose to pass any further order in connection with the alternative submissions made on behalf of the original defendants or the third parties. They may apply if they so choose, to the trial court for joining the 31 specified persons as defendants, or they may file a substantive suit against the alleged trespassers, namely the 31 specified persons, for an appropriate relief, and the court will decide the same in accordance with law.
10. Rule is therefore, made absolute. The orders passed by the learned Civil Judge (S.D.), Surat below applications Exhs. 56 and 60 in Special Civil Suit No. 586 of 1987 are hereby set aside. Since at the time of admission of the revision application on 22-6-89 this court (Coram: G. T. Nanavati, J.) had granted ad interim stay against operation of the trial court's orders dated 21-4-89 below Exh. 60, the said order for maintenance of status quo was not in force since 22-6-89 and, therefore, the request made by Ms. K. A. Mehta, for the opponents for directing the parties to maintain status quo is not granted. It is however expected that the parties to its revision application and also the third parties will maintain status quo for a week hereafter. Special Civil Suit No. 586 of 1987 has already become 7 years old and so the trial court is directed to expedite the hearing thereof. There will be no order as to costs of this Revision Application in the circumstances of the case.