Orissa High Court
Gopal Krushna Badu Mohapatra And Ors. vs Girish Chandra Nayak And Ors. on 5 March, 1999
Equivalent citations: 1999(I)OLR582
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioners' application for being impleaded as parties in O.S.No. 90/211 of 1985/1977 in terms of Order 1, Rule 10 of the Code of Civil Procedure, 1 908 (in short, the 'Code') having been rejected by learned Civil Judge (Sr. Division), Puri and such rejection having been upheld by learned District Judge, Puri in Civil Revision No. 144 of 1995, this writ application has been filed.
2. A brief reference to the factual aspects would be necessary. One Sanjay Narayan Sanyal filed O.S.No. 211/1997 against Radheshyam Badu Mohapatra for eviction on the ground that he had been appointed as marfatdar by the descendants of Rani Hemanta Kumari Devi, who had constructed the temple and as such was permitted to stay within the temple premises. One Jayakrushna Badu Mohapatra filed petition stating that the property had been gifted to him by Rani under a 'Danapatra' dated 4.1.1 933 and prayed for being impleaded as a party, which was allowed. The suit was transferred to the Court of Additional Civil Judge (Sr. Division), Puri and was renumbered as O.S.No. 90/21 1 of 1985-1 977. Girish Chandra Nayak and Kailash Chandra Nayak, opp. parties ) and 2 in the present writ application substituted themselves as plaintiffs in place of original plaintiff on the ground that original plaintiff executed a 'Seva Samarpana Patra' on 27.8.1981 in their favour making them marfatdars of the deity. Petitioners on the basis of a will executed by Jayakrushna Badu Mohapatra in their favour filed an application to be impleaded as defendants. The said petition was rejected on 27.7.1983, on the ground that Jayakrushna Badu Mohapatra continued to be a party to the suit and could protect the interest of petitioners. Another application was filed by petitioners which was rejected on 8.2.1985 on the ground that a will does not confer any title. Progress of the suit was stayed because of the proceeding under Orissa Estates Abolition Act, (in short, the 'Act') and the land was settled in favour of the deity. After death of Jayakrushna Badu Mohapatra, petitioners put the will to probate, and Probate Case No. 1 16/1986 was initiated. Further proceeding in Probate Case has been stayed by this Court in Civil Revision No. 49 of 1995. In the meantime according to petitioners 'Seva Samarpana Patra' on the basis of which plaintiffs (opp. parties 1 and 2 herein) claimed to be marfatdars was cancelled by a registered deed dated 18.7.1993, and another 'Seva Samarpana Patra' was executed by Sanjaya Narayan Sanyal in their favour under a registered deed dated 29.1 1.1993. On the basis of these two deeds petitioners filed an application to be impleaded as parties, but the same was rejected by the trial Court. Civil Revision No. 144 of 1995 was filed which has also been rejected.
3. According to petitioners their prayer has been improperly rejected, and true scope and ambit of Order 1, Rule 10 of the Code has not been kept in view. According to learned counsel for opp. parties 1 and 2, sole object for which application has been filed is to delay the proceeding. Petitioners are neither necessary nor proper parties to the suit and therefore, order of rejection does not suffer from any infirmity to warrant interference. According to them, evidence of parties was closed and the suit was posted to 25.7.1985 for argument. At that stage, prayer was made to stay the proceeding by indicating pendency of OEA Lease Appeal No. 7 of 1985 which was pending before S.D.O., Pun. On 30.7.1985 learned Addl. Subordinate Judge, Puri (as the Court was then designated) stayed hearing of part heard argument. OEA Lease Appeal No. 7 of 1985 was disposed of by remanding the matter for fresh adjudication. Being aggrieved by such order, opposite parties 1 and 2 filed OJC No. 4038 of 1988 before this Court. By order dated 27.7.1992 this Court set aside order passed in OEA Appeal No. 7 of 1988. On 5.12.1995 stay order was vacated in terms of order passed by this Court in the aforesaid writ application. A petition filed by one Manorama Badu Mohapatra under Order 1, Rule 10 of the Code was rejected. With reference to the factual position as indicated above, it is submitted that there is no scope for entertaining the writ application.
4. At this juncture, it is necessary to delineate the scope and ambit of Order 1, Rule 10 of the Code and true purport of the provision. The object of Order 1, Rule 10 is not to change the scope and character of the suit by adding new parties or to enable them to litigate their own independent claims, but simply to help them to avoid litigation which might otherwise become necessary. There may arise cases where the Court feels that in spite of the opposition of the plaintiff, it is necessary to add a person as defendant since in the absence of that person it finds itself helpless and unable to effectively and completely settle the matter in controversy and that its failure to so will lead to multiplicity of proceedings. The balance has, therefore, to be struck by the Court in each case by making a sound judicial approach and where it fails to do so, there is scope for interference. It is to be noted that the law is well-settled that the plaintiff is the dominus litis and as a result, therefore, no person should be impleaded as a party to the suit whom the plaintiff opposes. But at the same time it cannot be lost sight of that Order 1, Rule 10, Sub-rule (2) is meant to give every person an opportunity of being heard whose rights might be affected by the ultimate decree. A bare reading of Order 1, Rule 10 (2) of the Code shows that the Court has power to direct a person to be made a party to the suit if such a person is a necessary party or that the Court feels the necessity of impleading him with a view to adjudicate upon all the questions involved in the suit. The question involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party. In short the Court has to determine if such a person ought to have been joined as party. In other words. Court has to determine whether such a person is a necessary party without whose presence no relief can be granted to the plaintiff or the defendant. In the alternative the Court has to determine whether the presence of any such person was necessary to decide the disputes between the parties to the suit. In other words, it would mean that if a person was a necessary party the Court must order for the addition of that person as party to the suit. In case such a party was only a proper party then that party can be added if the Court holds that to decide dispute between the parties, his presence was necessary. The object of the rule is to enable the Court to try and determine, once for all, material questions common to the parties and to third parties and not merely the questions between the parties to the suit. Two tests for determining the question who is a necessary party to a proceeding are firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly, it should not be possible to pass an effective decree in the absence of such a party. Sub-rule (2) covers two types of cases : (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. The former is called a necessary party and the latter a proper party. Sub- rule (2) of Order 1, Rule 10 therefore, is attracted when the question is covered by one of the above. (See Kanhu Gauda v. D. Kodandi Dora : 60 (1985) CLT 453). The Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar : AIR 1963 SC 786 observed as follows :
"To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled, it is enough if we state the principle. A necessary party.is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is al! a matter of appreciation of the controversy in issue and its possible ramifications. The last limb of Sub-rule (2) of Rule 10 of Order 1 of the Code relates to the party whose "presence before the Court may be necessary" in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. Where the interest in the property is or would be an issue, the contender claiming such an interest in property would be entitled to join as proper parties. It is not compulsive under the rule to show always that the presence of the party applying to be joined is necessary for the determination of the questions as between the parties already on the records. The Court is required simply to see, whether the addition is necessary and should nof as a general rule apply the principle of dominus litis in favour of the plaintiff as a rule of universal application. The Court must examine the propriety or otherwise of the merits of the case as reflected and demonstrated in the petition of and it must arrive at a conclusion whether the addition is redundant or legal for effective and final adjudication of the litigation between the parties. The discretion of the Court in directing impletion of a party should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment. Before directing a party to be impleaded, a Court has to be prima facie satisfied about the bona fides of the applicant, the plausibility of his claims and the genuineness of his interest in the litigation.
5. Judged in the aforesaid background of legal position highlighted above, impletion .of petitioners as defendants would be appropriate. We therefore, direct that petitioners be impleaded as defendants. However, it cannot be lost sight of that the suit has proceeded to a great extent and is almost in a finalised stage. That being the position, we permit filing of written statement by newly added parties within a month from today and the parties will be permitted to lead further evidence which shall be done immediately thereafter. As the suit is pending since long, learned trial Judge would do well to complete the proceeding within four months hence. The writ application is allowed to the extent indicated above. No costs.
P.C. Naik, J.
I Agree.