M.K. Hanjura ORDER
M.K. Hanjura, J.
1. Challenge is thrown to the order dated 10th February 2016, passed by the court of the learned Munsiff, Kulgam (for brevity the "Trial Court") on an application under Order I Rule 10 of the Code of Civil Procedure, filed by the respondent no. 5 herein, on the grounds detailed out in the Civil Revision on hand.
2. The case set up by the petitioner is that a civil suit in respect of a parcel of land measuring 08 Marlas and 68 sq.ft. comprising Survey no. 327 Min, situate at Ashmujee, Kulgam, seeking Declaration, Mandatory and Permanent Injunction, was filed by the present petitioner against the respondents 1 to 4 herein. His further averment is that during the course of the trial in the suit before the Trial Court, apart from the preliminary statements of the parties, recorded on 4th July 2015, the statement of the Patwari concerned was recorded on 14th October 2013, wherein the Patwari concerned has deposed in unequivocal terms that the land in question has in fact been sold by Shri Sham Lal and Maharaj Krishan sons of Ram Koul by a registered sale deed to the petitioner and it is the petitioner who is the owner in possession thereof. The petitioner states that an application under Order XII Rule 6 of the Code was preferred by the petitioner before the learned Trial Court, seeking passing of the appropriate decree against the respondents 1 to 4, by way of the mandatory injunction, commanding the respondents 1 to 4 to remove the hollow cement blocks illegally laid on the plaint raised on the suit land by the petitioner. The respondents 1 to 4 filed their objections in opposition to the aforesaid application. In the interregnum, an application under Order I Rule 10 of the Code was preferred by the respondent no. 5 herein, beseeching his impleadment as the party defendant in the aforementioned suit. The said application, according to the petitioner, was objected to tooth and nail by the petitioner. However, by the impugned order dated 10th February 2016, the learned Trial Court allowed the application under Order I Rule 10 of the Code and arrayed the respondent no. 5 as the party defendant in the civil suit. It is this order, of which the petitioner is aggrieved and seeks setting aside thereof.
3. Heard and considered.
4. Learned senior counsel appearing on behalf of the petitioner has vehemently stated that the learned Trial Court without adverting to the core issues germane for deciding the application for impleadment as a party defendant to a Suit and in complete ignorantia of law inasmuch as the Court has no jurisdiction to add a party unless it is a necessary party, which is not the case at all in the present case. According to him, a necessary party is one without whom no order can be made effectively. A proper party is the one whose presence is necessary for a complete and final decision on the questions involved in the proceedings. If the question at issue can be worked out without anyone being brought in, the impleadment is impermissible for the eventual interest of a party in the fruits of litigation cannot be held to be a true test of impleading the parties as per the Code of Civil Procedure. He also contends that anyone who may be indirectly affected by the judgement that may eventually be passed or that he is interested in the fruit of the litigation, are irrelevant for the impleadment as the party to a suit. In support of his submissions, the learned senior counsel has placed reliance on Nawab Shaqafath Ali Khan and others v. Nawab Imdad Jah Bahadur and others MANU/SC/0349/2009 : (2009) 5 SCC 162.
5. A civil suit titled Mohd. Yaseen Shah v. Ghulam Nabi Rather and others, has been filed by the present petitioner before the learned Trial Court, in which his case is that the land measuring 08 Marlas and 68 sfts covered under Survey no. 327 Min at Ashmujee, was owned and possessed by Sham Lal Koul, Mahraj Krishan Koul (respondent no. 5 herein) sons of Smt. Posh Kuji. The said land, as is discernible from the suit so filed by the petitioner, was alienated by the aforenamed owners to the petitioner through the Attorney, namely, Mst Shahzada wife of the petitioner, by virtue of a registered Sale Deed executed and registered on 25th July 2007, after obtaining the permission from the competent authority. According to the petitioner, the respondents 1 to 4 herein had illegally laid hollow cement blocks on the cement cell of the petitioner surrounding the suit land. On the edifice of case set up in the plaint, the petitioner has sought a decree of declaration, declaring him owner in possession of aforementioned land. He has also sought in the above suit directions in the name of respondents 1 to 4 to remove the illegally laid hollow cements as also to restrain from causing any sort of interference with the suit property.
6. During the pendency of the above titled suit filed by the present petitioner, an application under the provisions of Order I Rule 10 of the Code, was filed by the present respondent no. 5, seeking his impleadment as the party defendant in the aforesaid suit. His submission in the application is that the preliminary statements of the parties have been recorded by the learned Trial Court that according to the respondent no. 5, has direct bearing on the subject-matter of the suit because the same unequivocally portrays that in case the respondent no. 5 is not arrayed as party in the suit, the matter sub judice before the learned Trial Court could not be adjudicated properly inasmuch as the respondent no. 5 is a necessary party to be arrayed in the above captioned suit, so that the rights between the parties could be adjudicated upon. Objections thereto have been filed by the present plaintiff, in which he states that the respondent no. 5 has failed to plead anything as to how his rights or interest are in any way at stake in the suit. The further contention of the present petitioner in opposition to the application of respondent no. 5 is that the respondent no. 5, being migrant, if arrayed as party will stall the proceedings and that the respondent no. 5 is a stranger to the suit property.
7. The instant matter, from the above discussion, narrows down to what provisions of the Order I of the Code of Civil Procedure. Rule 1 of the Order I of the Code envisages that all the persons may be joined in one suit as the plaintiffs where any right to the relief in respect of or arising out of the same act or transaction or series of the acts or the transactions is alleged to exist in such persons whether jointly, severally or in the alternative, and if such persons brought separate suit, any common question of law or fact would arise. Where it appears to the Court that any joinder of the plaintiffs may embarrass or delay the trial of the suit, the Court may, under Rule 2 of the Order I of the Code, put the plaintiffs to their election or order separate trials or make such other order as may be expedient. Who may be joined as defendants is mapped in Rule 3 of Order I. Where a suit has been instituted in the name of a wrong person as the plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may, under Sub-Rule (1) of Rule 10 of Order I of the Code, at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. The Court may, in terms of Sub-Rule (2) of Rule 10 of Order I of the Code, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as the plaintiff or the defendant, be struck out. The Court can also add the name of any person, who ought to have been joined, as the plaintiff or the defendant, whose presence according to the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
8. After discoursing the succinct account of the provisions of the Order I of the Code, the glance of the impugned order dated 10th February 2016 is imperative to grasp what emanates therefrom as it having impetus to square off the case in hand. Relevant paragraph of the page 03 of the impugned order is profitable to be reproduced infra:
"Before the applicant could be arrayed as party in the suit this court has to be certain and satisfied that he is necessary party to the litigation or he is simply a proper party for adjudication of the suit. To come to the said conclusion this court has perused the material on record, it seems that a suit has been filed by the plaintiff claiming that the suit land measuring eight (8) marlas and 68 sq.ft under survey number 327 min of village Ashmuji to be his own land exclusively and he claims that the defendants are aliens and have no interest with the suit land. It is apt to mention here that the plaintiff claims to have purchased the said land from the applicant itself and he states that the said transaction has long been materialised. At the same time the defendants have objected the stand taken by the plaintiff by stating that land belongs to the applicant and they have dealt with the land under the instructions of the applicant itself. In this matter it seems that both the plaintiff as well as defendants claim rights over the suit property through the applicant and thus in my considered opinion the applicant is a proper party, if not necessary one to adjudicate the suit finally. Since no relief has been claimed against the applicant in the main suit nor does it seem that the plaintiff wants to claim any relief from the applicant. As such he may not be a necessary party in the judicial adjudication. However, since both parties claim through the applicant as such most certainly he is connected with the subject matter of the suit, as such his presence shall assist the court in coming to a just conclusion and it shall also put an end to multiplicity of litigations."
9. The above extracted excerpt of the impugned order reveals that both the parties maintain their repetitive claims through the applicant (respondent no. 5 herein), as such, is connected with the subject matter of the suit and therefore, his presence shall assist the court in coming to a just conclusion, besides mitigate multiplicity of litigations. The impugned order is lucid, luculent and eloquent and need not be interfered with, as such.
10. The object of adding the parties under the provisions Order I Rule 10 of the Code is to avoid the multiplicity of the suits and the rule authorises and empowers the Court to add a party even for the purpose of the final determination of the questions involved in the suit as between a party on the record and the party sought to be added. Sub Rule (2) of Rule 10 of the Order 10 of the Code makes it clear that it requires the Court to add a party not only as a matter of course but on the given conditions where the presence of the person sought to be added, is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. The finding is a condition precedent for exercise of the jurisdiction by a Court for adding a party. These conditions mentioned in Sub Rule (2) of Rule 10 of Order I of the Code apply with equal force whether the application was on behalf of the plaintiff or any other person or even by an outsider without any exception.
11. The general rule in regard to the impleadment of the 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 I Rule 10(2) of the Code, 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 the suits for specific performance, either upon or even without any application, and on such terms as may appear to it to be just, direct adding of any person who ought to have been joined as plaintiff or defendant, but not added; or 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 question 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 disputes 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. In the present case, the learned Trial Court has passed a well-reasoned order, impugned herein and given the above discussion, the same need not be interfered with.
12. For all that has been done and discussed above, the revision petition lacks in merit and as a sequel whereof is dismissed, with connected MP(s). Interim direction, if any, shall stand on hand. The record of the Trial Court be sent down.
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