Madhya Pradesh High Court
Premnarayan Shivhare vs Nemi Chandra Jain on 24 September, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:16904
1 MP-1923-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 24th OF SEPTEMBER, 2024
MISC. PETITION No. 1923 of 2024
PREMNARAYAN SHIVHARE AND OTHERS
Versus
NEMI CHANDRA JAIN AND OTHERS
Appearance:
Shri Prashant Sharma - Advocate for the petitioner.
Shri Yash Sharma, learned counsel for the respondent [R-2].
ORDER
The present petition under Article 227 of the Constitution of India is directed against the order dated 07.03.2024 passed in Civil Suit No.RCSA No.122/2024 by XIV Civil Judge, Senior Division, Gwalior, whereby an application under Order 1 Rule 10 CPC preferred by the present petitioner/defendants seeking impleadment of Punjab and Sindh Bank Branch, Jayendraganj, Lashkar Gwalior as party defendant has been rejected on the ground that since respondent/plaintiff is dominus litus and is master of the suit, therefore, he cannot be compelled to make party to such a person against whom he does not wish to fight.
2. Learned counsel for the petitioner had assailed the said order on the ground that the Punjab and Sindh Bank is a necessary party to the suit as the said property has been acquired by the present petitioner/defendants in an auction proceedings conducted by Bank, wherein the property was kept as Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 2 MP-1923-2024 mortgage by one Chironjilal, who on one hand had kept the property in question mortgaged, but on the other had sold it to defendant no.4 and 5, who in turn had sold it to plaintiffs, therefore, the Bank is a necessary and proper party in whose absence no proper decree could be passed.
3. It was further argued that the presence of Bank is necessary to prove the fact that Chironjilal after having kept the property in dispute mortgaged with the Bank had lost the right for further sale of the property, therefore, the very suit for declaration preferred by the respondent/plaintiffs was of no consequence, but learned Trial Court on miscellaneous reasons has rejected the application which is per se illegal.
4. On the other hand, Shri Yash Sharma, appearing for the respondents/plaintiffs submit while placing reliance in the matter of Kranti Arora vs. Digjam Ltd. and Ors. passed in CM (M) No.51983 of 2018 in RFA (OS) No.7/2011 passed by Delhi High Court vide order dated 08.07.2022 had contended that dominus litis is a person to whom the suit belongs and he is master of the suit and is having real interest in the decision of a case and the plaintiff being dominus litis cannot be compelled to fight against a person against whom he has not claimed any relief. Reliance was also placed in the matter of Mumbai International Airport Pvt. Ltd vs. Regency Convention Centre and Hotels Pvt. Ltd. and Ors. reported in AIR 2010 SC 3109.
5. While referring to para 18 onwards of the Kranti Arora (supra) judgment it was contended that learned Trial Court has rightly rejected the application as the presence of Bank was not necessary.
6. This Court after hearing the rival contentions and perusing the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 3 MP-1923-2024 record finds that the learned Trial Court has rightly observed that the plaintiff is a dominus litis and cannot be compelled to fight against the person against whom he does not claim any relief.
7. It has also rightly been observed by the Trial Court that the plaintiff in a suit is required to identify the parties to whom he wants to implead as defendants and cannot be compelled to face litigation with the person against whom he has no grievance.
8. This Court also finds that the Court can order a person to be impleaded as a necessary party if his presence is required to decide the suit. Merely, because the plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The Apex Court in various decisions had interpreted scope and ambit of legal provisions as contained in order 1 Rule 10 (2) CPC.
9. The Supreme Court in Ramesh Hirachand Kundanmal V Municipal Corporation of Greater Bombay, (1992) 2 SCC 524 interpreted legal provision as contained in Order I Rule 10(2) CPC and held as under:-
"Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 4 MP-1923-2024 an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of 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."
10. The Supreme Court in Anil Kumar Singh V Shivnath Mishra, (1995) 3 SCC 147 interpreted Order 1 Rule 10(2) CPC and held as under:-
"By operation of the above-quoted rule though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party- defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject- matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings."Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM
NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 5 MP-1923-2024
11. The Supreme Court in Mumbai International Airport (P) Ltd. V Regency Convention Centre and Hotels (P) Ltd., (2010) 7 SCC 417 while interpreting Order I Rule 10(2) CPC observed as under:-
"The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) CPC, which provides for impleadment of proper or necessary parties.
.........The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A "necessary Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 6 MP-1923-2024 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 matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction 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. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub- rule is not about the right of a non- party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suomotu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 7 MP-1923-2024 as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."
12. The Supreme Court in Bibi Zubaida Khatoon V Nabi Hassan, (2004) 1 SCC 191 laid down broad principles which should govern disposal of an application for impleadment which are as under:
1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 8 MP-1923-2024 party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."
13. In the present case the contention of the petitioner is that he had acquired the property in question by way of auction from the Bank with whom the property was kept mortgaged by the original owner and since property was kept mortgaged with the Bank the original owner had no right and title to have transferred the suit property and, therefore, to prove the factum of mortgage, Bank is a necessary and proper party and in whose absence no proper decree could be passed.
14. The aforesaid contentions as raised by the petitioner though prima facie appears to be lucrative, but when analyzed in light of the aforesaid decisions of the Apex Court it is found that the fact of property being kept mortgaged with Bank could also be brought before the Court by the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16904 9 MP-1923-2024 petitioner/defendants, who alleges that they have acquired property by way of auction from the Bank and for that it is not necessary to implead Bank as a party.
15. Therefore, this Court does not find any perversity or illegality in the impugned order, accordingly, the petition being sans merit is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE Chandni Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 03-Oct-24 12:06:39 PM