Uttarakhand High Court
The New India Assurance Company Ltd vs Smt. Kusum Lata And Others on 8 June, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1628 of 2023
The New India Assurance Company Ltd. .....Petitioner.
Versus
Smt. Kusum Lata and others .... Respondents
With
Writ Petition (M/S) No. 1629 of 2023
The New India Assurance Company Ltd. .....Petitioner.
Versus
Smt. Kusum Lata .... Respondent
Present :
Mr. P.C. Maulekhi, Advocate, for the petitioners.
Mr. Shobhit Joshi, Advocate, on behalf of Mr. Ashish Joshi, Advocate, for the
respondents.
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
These are two Writ Petitions. In Writ Petition (M/S) No. 1628 of 2023, the petitioner has prayed for the following reliefs :-
"i. Issue a writ, order or direction in the nature of certiorari to quash the judgement and order dated 25.02.2023 passed by Ld. Claim Tribunal /II-ADJ Nainital in M.A.C.P. No. 143 of 2021 "Smt. Janki Adhikari V/s Smt. Kususm Lata and ors." (contained as Annexure No.1) whereby rejected the application of the petitioner company to implead the State Bank of India Branch at Lalkuan, Nainital as respondent in the aforesaid claim petition.
ii. Issue a writ, order or direction in the nature of mandamus directing the Ld. Claim Tribunal /II -ADJ Nainital to implead the State Bank of India (respondent no.3 herein) as necessary and proper party in the M.A.C.P. No. 143 of 2021 "Smt. Janki Adhikari V/s Smt. Kususm Lata and ors." Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.2
iii. Award the cost of the petition in favour of the petitioners."
2. Principally, the reliefs, which have been sought by the petitioner while putting a challenge to an order dated 25th February, 2023, as it was passed in MACP Case No. 143 of 2021, Smt. Janki Adhikari Vs. Smt. Kusum Lata and others, the petitioner/defendant's application in a Claim Petition to implead the State Bank of India a third party was rejected.
3. In the connected Writ Petition (M/S) No. 1629 of 2023, the petitioner Insurance Company, is almost under an akin circumstance, where the petitioner has put a challenge to an order dated 31st January, 2023, as it was passed by the learned Motor Accident Claim Tribunal in MACP Case No. 90 of 2021, Pravin Singh and another Vs. Smt. Kusum Lata and others, whereby, the defendant/petitioner's application under Order 1 Rule 10 of the CPC to implead the State Bank of India has been rejected.
4. The question would be, that in a Claim Petition, which is filed by the claimants before the Tribunal, it is rather the claimants, who are driver /masters of the proceedings, and who have exclusive right to choose their opponents is an exclusive right, which is vested with the claimants in accordance with law.
5. If the claimants do not choose a particular party as to be the opposite party to the proceedings drawn by the claimant / plaintiff, which according to the 3 defendant/petitioner to the proceedings, would be a necessary party, if at all, the ultimate sufferer would be, it would be the claimants and not the defendant, who files an application under Order 1 Rule 10 of the CPC, in a proceeding instituted by the plaintiff. At least, defendant cannot dictate upon the claimant to choose the opposite party as the choice and wisdom of the defendant.
6. It needs no reference, that under the principle of dominus litis, it has been a consistent view, which has been expressed by the various High Courts, including the Hon'ble Apex Court, that under the principle of dominus litis, it is exclusively the prerogative of the plaintiff to the proceedings to choose his opposite party / defendant. A plaintiff cannot be forced upon by the defendant to add a person as a party to the suit, until and unless, he himself willingly feels, that the party would be a necessary party. The said observation has been made by the Hon'ble Apex Court in a judgment reported in (2020) 14 SCC 392, Mohamed Hussain Gulam Ali Shariffi Vs. Municipal Corporation of Greater Bombay. The observation has been made in para 14 of the said judgment, which is extracted hereunder :-
"14. It is a settled principle of law, which does not need any authority to support the principle, that the plaintiff being a dominus litis cannot be forced to add any person as party to his suit unless it is held keeping in view the pleadings and the relief claimed therein that a person sought to be added as party is a necessary party and without his presence neither the suit can 4 proceed and nor the relief can be granted. It is only then such person can be allowed to become party, else the suit will have to be dismissed for non-impleadment of such necessary party. Such does not appear to be a case here."
7. Almost a similar view has been taken by the Division Bench of the Delhi High Court in a judgement reported in 2022 SCC OnLine Del 2023, Kranti Arora Vs. DIGJAM Ltd., wherein too the Delhi High Court in the said judgment in para 18 has dealt with the basic ethos of the principle, as to what would the term "dominus litis" means. In fact, it has inferred that the term "dominus litis" in its literal sense means that a person who is the master of the proceedings of the suit, whose real interest is at stake, it is rather his decision, which is to be taken to implead or choose his opponent.
8. The defendant to the suit, cannot according to his wisdom or choice files an application under Order 1 Rule 10 of the CPC, to implead a third party to the proceedings, which is otherwise not chosen to be made as an opposite party by the plaintiff. The said principle has been observed in paragraphs 18 to 22, which have been extracted hereunder :-
"18. Dominus litis is the person to whom a suit belongs and is master of a suit and is having real interest in the decision of a case. The plaintiff being dominus litis cannot be compelled to fight against a person against whom he does not claim any relief. The plaintiff in a suit is required to identify the parties against whom he wants to implead as defendants and cannot be compelled to face litigation with the persons against whom he 5 has no grievance. A third party is entitled to be impleaded as necessary party if that party is likely to suffer any legal injury due to outcome of the suit. The doctrine of dominus litis should not be over stretched in impleading the parties. The court can order a person to be impleaded as necessary party if his presence is required to decide real matter in dispute effectively. Merely because the, plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2) CPC are having wide amplitude in operation. The Supreme Court in various decisions had interpreted scope and ambit of legal provisions as contained in Order I Rule 10(2) CPC. 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 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.
19. 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 6 without any protraction, inconvenience and to avoid multiplicity of proceedings.
20. 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) of the Code of Civil Procedure ("the Code", for short), 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 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.7
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 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.
21. 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 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.8
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.
22. The Supreme Court in Vidur Impex and Traders Private Limited & others V Tosh Apartments Private Limited & others, (2012) 8 SCC 384 referred the above mentioned decisions."
9. The Hon'ble Apex Court in yet another judgment as reported 2022 SCC OnLine SC 1234, Sudhamayee Pattnaik and others Vs. Bibhu Prasad Sahoo and others, has almost dealt with the similar situation, as to who would be the necessary party to a proceeding for the purposes of invoking the application of Order 1 Rule 10 of the CPC. In the said case, it was observed, that since the party, who was sought to be impleaded was subsequent purchaser, who has stepped into the shoes of the defendant, the subsequent purchaser's application under Order 1 Rule 10 of the CPC, on an intimation given by the defendant under Order 22 Rule 10 of the CPC, would be maintainable for the purposes of introducing the subsequent purchaser/ pendente lite as to be as party to the defendant to the Suit. It was altogether a distinct situation, where under Order 1 Rule 10 of the CPC, was to be read under Order 22 Rule 10 of the CPC.
10. The learned counsel for the petitioner has made a reference to yet an another judgment rendered by the Coordinate Bench of Bombay High Court as rendered in Writ Petition No. 10493 of 2022, Ashok Vs. State of 9 Maharashtra and others, where the Bombay High Court in the said case, was dealing with an issue as to whether a third person, who files an application to be impleaded as party in a proceeding on the ground, that if any decision is rendered in the proceedings, he would be likely to be effected, the same was considered by the Bombay High Court under those circumstances, where the third party was seeking to implead himself as to be a party, since not being already imleaded as defendant, if his right is likely to be affected, he would be the necessary party to be impleaded because in his absence, the suit cannot be decided completely and effectively.
11. In that case, the applicant to application under Order 1 Rule 10 of the CPC, was not a pre impleaded defendant, rather he was a third person, who was seeking his impleadment. The said judgment was rendered under altogether a different context and circumstances, and it would not apply in the instant case because in that case, it was not an application which was preferred under Order 1 Rule 10 of the CPC by a defendant, which has been chosen by the plaintiff to be made as a party. Hence, this judgment would be of no avail.
12. Even otherwise also, the petitioner should not bother as to what would be the impact on the ultimate decision to be taken in the absence of the State Bank of India, sought to be impleaded by him, is not being impleaded as a party because, he being a defendant should not have any concerned with regard to ultimate decision, which is to be taken because, if at all, if there happens to be any adverse 10 consequences due to non impleadment, its consequences will have to be faced by the plaintiff, who is the master of his suit and being the master of the suit, under the principle of "dominus litis", it is exclusively the prerogative and choice of the plaintiff to choose his opponent, and a defendant/ opponent impleaded in the Suit, cannot force upon the plaintiff to choose another opponent, who is not already party to the proceedings by invoking the provisions contained under Order 1 Rule 10 of the CPC. At least, the plaintiff cannot be burdened with the new defendant, on an application under Order 1 Rule 10 of the CPC, filed by the defendant.
13. Thus, the Writ Petitions, for the reasons assigned above, are misconceived and the same are accordingly dismissed.
(Sharad Kumar Sharma, J.) 08.06.2023 Shiv