Hon'ble Judges/Coram:
Lok Pal Singh JUDGMENT
Lok Pal Singh, J.
1. This writ petition has been filed for the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 26.10.2017 (Annexure No. 1 to this writ petition) passed by the learned 2nd Additional Civil Judge (Senior Division) Haridwar in Original Suit No. 108 of 2013 'Swami Rupendra Prakash vs. Surendra Kumar and others'.
(ii) Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner.
2. Factual matrix of the case is that plaintiff/petitioner instituted a suit being suit no. 108 of 2013 Swami Rupendra Prakash vs. Surendra Kumar and others in the court of Civil Judge (Senior Division), Haridwar for a decree of permanent prohibitory injunction, stating therein that Swami Hansprakash Ji was the Mahant, Manager and owner of the property involved in the suit, during his life time. Plaintiff was the chela of Swami Hansprakash Ji Maharaj who resided in the property along with Swami Hansprakash Ji during his life time. Swami Hansprakash Ji Maharaj out of love, affection and care of the plaintiff had executed a will dated 17.12.2012 in favour of the plaintiff/petitioner in respect of the property involved in the suit along with certain other property. Swami Hansprakash Ji Maharaj died on 05.01.2013 and the petitioner being disciple and on the basis of Will dated 17.12.2012 being executed by Swami Hansprakash in favour of the petitioner/plaintiff became the Mahant and owner in possession of the property in question, who is also managing the day to day affairs of the Ashram. It was further stated that defendants have not concern with the property involved in the suit, however, the defendants are continuously interfering in the possession and peaceful management of the plaintiff. The defendants contested the suit and filed their written statement.
3. During the pendency of suit, respondent no. 1 Vijay Kumar Malik filed an application under Order 1 Rule 10 read with Section 151 C.P.C. for impleading himself as party to the suit inter-alia on the ground that Swami Shri Avdhoot Mandal Ashram Prachin Braham Dass Trust, Haridwar, which is a registered society registered under Societies Registration Act, 1860, is the owner of the suit property. Swami Hansprakash was the President and Sushil Kumar Malik was the Secretary of the said society. After the death of Sushil Kumar Malik on 22.12.2014, the applicant/respondent no. 1 has been duly elected as Secretary of the said secretary in the meeting held on 11.02.2015. Plaintiff/petitioner filed objections to the impleadment application stating that the alleged society has no concern with the property in question nor the property involved in suit has ever been vested in the alleged society not the said society is the owner of the suit property. It was further stated that the present suit is for injunction filed against the persons interfering in the peaceful possession and management of the plaintiff in the property involved in the suit, the plaintiff to the suit is the dominus litis. Besides the plaintiff, defendant nos. 2 and 4 also filed their objections to the impleadment application contending that the application is not maintainable. It was also stated that the said Society is neither a registered society nor the applicant ever remained the member of the same.
4. The trial court, vide its order dated 26.10.2017, has allowed the application paper no. 128 ka with cost of Rs. 200/- in a cryptic and mechanical manner, stating that all the aggrieved parties must be allowed to be impleaded and contest the suit. Insofar as the merits are concerned, the same shall be concerned after the evidence in the suit.
5. I have heard learned counsel for the parties and perused the material brought on record.
6. Learned counsel for the petitioner/plaintiff would submit that the petitioner/plaintiff is dominus litis and he cannot be compelled to implead a stranger as party to the suit. It is argued that neither the respondent no. 1 is a necessary nor a proper party to the suit and there was no occasion for the trial court to direct the plaintiff to implead the respondent no. 1 as defendant in the suit.
7. Per contra, learned counsel for the respondent would submit that the trial court has rightly allowed the impleadment application. He would submit that the respondent no. 1, being the Secretary of Swami Shri Avdhoot Mandal Ashram Prachin Braham Dass Trust, Haridwar, a registered society, is a necessary and property to the suit.
8. The general rule regarding impleading of parties is that the petitioner/plaintiff, being the dominus litis, has a right to choose the person against whom he wish to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. This proposition of law has been observed by the Hon'ble Supreme Court in the following paragraphs in the case of Baluram Vs. P. Chellathangam and others reported in MANU/SC/1150/2014 : (2015) 13 SCC 579
"13. In Mumbai International Airport MANU/SC/0427/2010 : (2010) 7 SCC 417 this Court observed:
13. 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 sub-rule is extracted below:
'10.(2) Court may strike out or add parties.- The Court may 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 plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court be may necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'
14. 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 part: (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 property party.
15. 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."
9. The Hon'ble Apex Court in Kanaklata Das & Ors. Vs. Naba Kumar Das & Ors. MANU/SC/0041/2018 : (2018) 2 SCC 352, has held as under:-
"11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question which arose in this appeal. These principles are mentioned infra:
11.1. First, in an eviction suit filed by the plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.
11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds.
11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See Ranbir Singh v. Asharfi Lal MANU/SC/0829/1995 : (1995) 6 SCC 580).
11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See Ruma Chakraborty v. Sudha Rani Banerjee MANU/SC/0919/2005 : (2005) 8 SCC 140).
11.5. Fifth, 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. (See Udit Narain Singh Malpaharia v. Board of Revenue, MANU/SC/0045/1962 : AIR 1963 SC 786).
11.6. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See Kasthuri Radhakrishnan v. M. Chinniyan MANU/SC/0075/2016 : (2016) 3 SCC 296).
10. In the case of Gurmit Singh Bhatia vs. Kiran Kant Robinson and others reported in MANU/SC/0977/2019 : AIR 2019 (SC) 3577 Hon'ble Supreme Court has reiterated that, in a suit, plaintiff cannot be compelled to implead a person in a suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by the Plaintiff.
11. Now reverting to the facts of the present case, in the case at hand, the petitioner/plaintiff has filed the instant suit for permanent prohibitory injunction; no relief for declaration has been sought therein. As it is a simpliciter suit for injunction and no relief has been sought against the respondent no. 1, there is no justification to add him as a party. Moreover, nothing has been brought on record by the respondent no. 1 to show that he is a necessary or proper party to the suit, and in whose absence no effective decree could be passed at all by the Court. Besides the plaintiff, defendant nos. 2 and 4 has also filed objections to the impleadment application wherein they have specifically stated that the applicant/respondent no. 1 was never a member of the said Society. In the opinion of this Court, the respondent no. 1 is neither a necessary nor a proper party. It has been held by the Hon'ble Supreme Court in a catena of decisions, some of which has also been adverted to by me in preceding paragraphs, that the plaintiff being the dominus litis, has a right to choose his opponents; he cannot be compelled to make any third person a party to the suit; no person can compel the plaintiff to allow such person to become co-plaintiff or defendant in the suit, more particularly with respect to a person against whom no relief has been sought.
12. In the light of aforesaid, this Court is of the considered view that the trial court has committed error of law in allowing the application moved by the respondent no. 1 under Order 1 Rule 10 read with Section 151 C.P.C. The Trial Court, without having considered the fact that whether the applicant is proper and necessary party to the suit, or not, has allowed the application in a very cryptic and mechanical manner. A sole reason has been shown by the trial court that in order to avoid multiplicity of litigation only, application is liable to be allowed; no cogent reason has been recorded by the trial court.
13. For the reasons recorded above, writ petition is allowed. Impugned order dated 24.10.2017 is set-aside.
14. No order as to costs.
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