Patna High Court
Surendra Prasad vs Shailendra Prasad And Ors. on 23 May, 1984
Equivalent citations: AIR1985PAT189, AIR 1985 PATNA 189
ORDER M.P. Varma, J.
1. By the impugned order the Court below has refused the prayer of the petitioner from being added as a party-defendant in the suit.
2. The plaintiff and the defendants Yogendra Prasad, Harendra Prasad and Birendra Prasad are own brothers and the petitioner-intervenor is also own brother of the plaintiff and of those defendants.
3. Dina Nath Jaiswal has been alleged in the plaint as Benamidar of the plaintiff. The suit is for declaration that Dina Nath Jaiswal is the Benamidar of the plaintiff with regard lo the suit properties and the plaintiff is the exclusive owner of the said property.
4. The petitioner has also made a claim in the said suit-properties and for that reason, he has sought to be added as a party.
5. The Court below has refused his addition as such on the ground that since the plaintiff is seeking exclusive right in the suit property and the petitioner is seeking an interest therein, the latter cannot be added as a party. The petitioner has annexed the copy of the written statements of other defendants who are full brothers of the petitioner anil in that those brothers have described the properties as joint family properties and not the exclusive properties of the plaintiff.
6. Since the brothers who have been impleaded, claim the suit properties as joint-family-properties, which is also the claim of the petitioner, his omission to be impleaded as defendant seems to be deliberate. When the case of the petitioner is at par with those of the other brothers arrayed as defendants, the Court below wrongly refused the prayer because, in view of the pleadings of the parties, the presence of the petitioner on record as defendant is necessary in order to enable the Court, effectively and completely to adjudicate upon and to settle all the questions involved in the suit. The decisions referred to in the order impugned have no application on the facts of the case. The Court is required simply to see, whether the addition is necessary and should not 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 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 and this aspect of the case has been overlooked by the Court, specially in the teeth of averments made in the written statement of other brothers.
7. The order is infirm and will cause injustice to the petitioner if he is left out. On the other hand, his inclusion, besides proving conducive to the conclusive determination of the question involved shall in no case cause any hardship to the plaintiff in fighting out against the petitioner when his defensive claim is also in agreement with and not at variance with the claim of other defendants in the suit.
8. In the foregoing situation, the impugned order is set aside. The Court below is directed to add the petitioner as a party-defendant and to, thereafter, proceed with the suit in accordance with law.