Bombay High Court
Chintaman Sahadevrao Bagde vs Baliram Rangnath Bansode & Another on 20 November, 1997
Equivalent citations: 1998(2)BOMCR823
ORDER N.P. Chapalgaonker, J.
1. Heard parties.
2. The revision petitioner, a third party applicant, whose application to implead him as a defendant, was rejected by the learned trial Judge, has moved this Court by this Civil Revision Application. Baliram Rangnath Bansode filed a suit for perpetual injunction in respect of open land out of S. No. 14 situated at Aurangabad, impleading one Gopinath Bhikaji Chavan as a defendant. The defendant came out with a written statement that he is not concerned with the suit property and the real owner in possession of the suit property is one Shri Chintaman Bagde and the suit having been filed without impleading Shri Bagde with some ulterior motive, should be dismissed. It was also contended that some construction was made by the said Bagde in the disputed property. After this written statement was filed, an application came to be moved by Chintaman Sahadevrao Bagde to implead him as party defendant to the suit.
3. In this application, applicant contended that he is the purchaser of the suit property and a sale deed has been executed in his favour on 20th September 1985. It was also pointed out that the present plaintiff Baliram has also filed a suit against the applicant Chintaman bearing R.C.S. No. 932/1990 in respect of the same property. However, holding that the plaintiff is dominus litis and cannot be compelled to join anybody as defendant, the learned trial Judge dismissed the application. Civil Revision Application challenges this order.
4. Shri P.P. Patni, learned Counsel for the petitioner, contended that this is a suit simplicitor for injunction and, therefore, the plaintiff can sue anybody who actually obstructs and cannot be compelled to join any other person. Shri Patni relied on the judgment of the learned Judicial Commissioner, Goa, Daman and Diu in the case of Gonsale De Filotnena Luis v. Inacio Piedade Hildeberte Fernandas, A.I.R. 1977 Goa, Daman & Diu 4. The learned Judicial Commissioner has observed that the plaintiff being dominus litis, cannot be compelled to fight against a person against whom he does not claim any relief. The word 'may' in sub-rule (2) of Rule 10 Order 1 imports a discretion. In exercising that discretion, the courts will invariably take into account the wishes of the plaintiff before adding a third person as defendant. No doubt that the wishes of the plaintiff in chosing as to who should be the defendant in his suit, do carry weightage. If the necessary parties are not impleaded, the plaintiff is likely to suffer. If the plaintiff takes that risk by not impleading somebody as defendant, the Court will have to examine whether the presence of the party seeking to be impleaded is necessary for adjudication of all issues arisen in that litigation. A discretion is vested in the Court to implead a party either as a plaintiff or a defendant, if it is necessary for determination of the real matter in dispute. While determining whether a party is to be added or not, the Court need not always be guided by the wishes of the plaintiff. There is a duty, higher than the wishes of the plaintiff, entrusted with the Court to examine the matter and decide whether the presence of that party is necessary for determination of the real matter in dispute. The learned Judge of the Madhya Pradesh High Court, in the case of Sampatbai w/o Ambaram v. Madhusingh Gambhirji, , has rightly observed that under Order 1, Rule 10(2), 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 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 rights and the rights, which the person desiring to be made a party 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. The learned Single Judge of Patna High Court in the case of Singheshwar Rai v. Babulat Rai, , reminded that the expression 'issues involved in the suit' cannot be read as 'issues involved between the parties to the suit'.
5. In the very judgment, which is relied on by Shri Patni, the learned Judicial Commissioner of Goa, Daman and Diu has laid down five tests which would help to determine whether the party should be added to a suit. The second test pointed out by the learned Judicial Commissioner reads as under :
"It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject matter, which could still have been decided in the pending suit itself."
If this test is applied, the learned Judge should have allowed the application of the revision-petitioner. A Civil Court hearing a civil suit is not an instrument which works at the wishes of a party litigant and, therefore, to permit decrees to be passed without impleading in the suit a person whose rights are likely to be substantially affected, merely because the plaintiff does not wish to join such person as a party, would be abuse of the judicial machinery. It has been pointed out by the parties that the present plaintiff has also tiled a separate suit in respect of the very property against the applicant-revision petitioner. That suit is also for perpetual injunction. If an injunction is asked for in a suit in respect of a particular property, another suit filed by the same plaintiff against some other defendant in respect of the same property was a fact which the learned Judge should have taken into consideration. The defendant already on record in the present R.C.S. No. 979/1990 has pleaded that he is not the real owner but the applicant-petitioner Chintaman is the real owner of the property in dispute. In these circumstances, the learned Judge should have, to avoid multiplicity of the proceedings, permitted applicant to be added as a party and the right course which he should have adopted was to dispose of both the suits in which the entitlement of the respondent for perpetual injunction was a point at issue. However, that course is not now open since I am told that during pendency of this revision, another suit was decreed by the Trial Court; an appeal filed by the defendant (present applicant) was allowed by the District Court and Second Appeal challenging that decree is pending in this Court.
6. I, therefore, quash the order of the learned 7th Joint Civil Judge, Junior Division, Aurangabad below Exh. 20 in R.C.S. No. 979/1990, allow this Civil Revision Application and direct that the applicant-petitioner be impleaded as a defendant in the suit. Since the suit is now about 7 years' old, I direct that the same may be disposed of as expeditiously as possible.
7. With these directions and to this extent, rule is made absolute. There shall be no order as to costs.
8. Revision allowed.