(i)MANU/TN/0715/2014 [D.Ananthi v. K.Chandrasekaran]
39. Also that, if an individual can show a fair semblance of title or interest, he can, indeed, filean application for impleadment. A Court of Law can direct impleadment of a third party in an application/suit only in a case where he is a proper or necessary party and otherwise has an interest in the subject matter of any pending proceedings/suit. Mere interest of parties in the fruits of litigation cannot be a real test for they being impleaded as parties. It is to be borne in mind that impleadment of parties under Order 1 Rule 10 of of the Civil Procedure Code is not a matter of law but only a matter of fact. A Court of Law whether to allow the impleading application or not is to take into consideration of all relevant attendant facts and circumstances encircling the case. However, for exercise of said power, the Court has to render a finding that the concerned party is a necessary or proper party. Therefore, the addition of parties would hinge upon a judicial discretion which has to be exercised by a Court of Law in a judicious manner, based on facts and circumstances of the case, which float on the surface.
(ii) 2007 (2) CTC 73 [Krishnan, S v. Rathinavel Naicker]
A party to a litigation is not entitled to use the provisions of Order I, Rule 10 (2), C.P.C., to implead a person, just for the purpose of eliciting a statement from him, in whatever form, so as to make use of the same as a piece of evidence. As observed by this court in Somasundaram Chettiyar and others vs- Balasubramanian (1998 (1) C.T.C. 626), a person does not become a necessary party merely because he has some evidence relevant to the case on hand. A necessary witness is different from a necessary party.
In a nut shell, the tests to be applied for determining the right of a party to implead another, in a pending suit or other proceeding, may be crystallized into the following categories:-
a) If without his presence no effective and complete adjudication could be made;
b) If his presence is necessary for a complete and effectual adjudication of the dispute though no relief is claimed against him;
c) If there is a cause of action against him;
d) If the relief sought in the suit or other proceedings is likely to be made binding on him;
e) If the ultimate outcome of the proceedings is likely affect him adversely;
f) If his role is really that of a necessary witness but is sought to be camouflaged as a necessary party;
If a party to a litigation satisfies the court that the person sought to be impleaded, passes any one or more of the above tests, then he is entitled to get the discretion of the court exercised in his favour. The above tests are not exhaustive and at times, even if a person falls under any one of the above categories, the court may refuse to implead him. To quote an example, a subsequent purchaser of a property, which forms the subject matter of the suit, may satisfy the tests (d) and (e) above mentioned and yet the court may decline to implead him on the basis of the doctrine of lis pendens. Therefore the above list is only a broad statement of the principles that could be culled out from judicial precedents.
(iii) 2011 (256) MLJ 1255 [C.Ramasamy and Ors. v. S.S.Chinnusamy and Ors.]
15. The Court has to weigh the role to be played by the proposed parties who seek to be impleaded in a suit with reference to their rights. If the Court feels that without their presence nothing could be adjudicated, then they are necessary parties and their presence can be decided to be essential. On the other hand, if the Court deems fit that a party whose presence alone is necessary and no relief need to be accorded to the said party, then such party is a proper party and he may be added as a party. If the Court reaches a conclusion that presence of the proposed party is not at all necessary for adjudication of the claims of the parties in the suit, then he is neither a necessary party nor a proper party and there is no need to implead him.
(iv) 2010 (7) SCC 417 [Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. and Ors.
8. 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 I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties.
(2) 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 may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
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 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.
12. Let us consider the scope and ambit of Order I of 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 suo moto 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. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import- 1981 (1) SCC 80, reiterated the classic definition of `discretion' by Lord Mansfield in R. vs. Wilkes - 1770 (98) ER 327, that `discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, `but legal and regular'. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule.
(v) 2005 (6) SCC 733 [Kasturi v. Iyyamperumal and Ors.]
5. Let us therefore confine ourselves to the provision of Order 1 Rule 10 sub-rule (2) of CPC which has already been quoted hereinabove. From a bare perusal of sub-rule (2) of Order 1 Rule 10 of the CPC, we find that power has been conferred on the Court to strike out the name of any party improperly joined whether as plaintiff or defendant and also when the name of any person ought to have been joined as plaintiff or defendant or in a case where a person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In the present case, since we are not concerned with striking out the name of any plaintiff or defendant who has been improperly joined in the suit, we will therefore only consider whether the second part of sub-rule(2) Order 1 Rule 10 of the CPC empowers the Court to add a person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
ORDER 1 RULE 8 :
Supreme Court of India
Chairman, Tamil Nadu Housing ... vs T.N. Ganapathy on 7 February, 1990
On the question of maintainability of the suit in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure, it has been contended that since the injury complained of is in regard to demand of money and that too by a separate demand against each' of the allottees, giving rise to different causes of action, the Rule 1 has application. The learned counsel proceeded to say that it is not known whether each of the allottees in Ashok Nagar had been even served with an addi- tional demand before the suit was filed; and further empha- sised that those who had been so served are interested in defeating only the demand individually referable to each of them. Each one of them is not interested in what happens to the others. It is, therefore, suggested that only such of the allottees who have already been served with additional demands are entitled to maintain an action in court, and they also should do it by filing separate suits. We do not find any merit in the argument. The provisions of Order 1 of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievances which they seek to get redressed. In Kodia Goundar and Another v. Velandi Goundar and others, |LR 1955 Madras 339, a Full Bench of the Madras High Court observed that on the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous person on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be granted or not, should exam- ine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. The object for which this provision is enacted is really. to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object for its enactment. There are no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim for money or for injunction as the present one.
It is true that each of the allottees is interested individually in fighting out the demand separately made or going to be made on him and, thus, separate causes of action arise in the case, but, that does not make Order 1. Rule 8 inapplicable. Earlier there was some doubt about the Rule covering such a case which now stands clarified by the Explanation introduced by the Code of Civil Procedure (Amendment) Act, 1976, which reads as follows: "Explanation--For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
Bombay High Court
The Municipal Council, Amravati vs Govind Vishnu Sarnaik And Ors. on 28 January, 1976
Rule 8 (1) of Order 1 of the Code of civil Procedure reads as follows:-
"R. 8(1) Where there are numerous persons having the same interest in one suit, one to more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or where from the number of persons or any other cause each service is not reasonably practicable, by public advertisement, as the Court in each case may direct."
The terms of these rules are clearly enabling the party with the permission of the Court either to sue or be sued or to defend actions governed by the Code of Civil Procedure. Court is empowered to grant permission where there are numerous persons having the same interest in one suit. While granting this permission it is obvious that Court is permitting departure from normal rule that the person or persons who are likely to be affected one way or the other should be directly joined as parties.
. The scheme of filing of suits and adjudicating upon causes under the Code indicates that it is almost a four-dimensional movement-firstly action by one party called plaintiff against opposing party termed defendant: secondly, with regard to certain matters said to be in dispute; thirdly, having claim for certain cause of action; and fourthly, seeking some sort of legal relief. All these necessarily have to exist for making it a suit. Order 1 by itself deals, as its title indicates, with the first part or the basic requirement of the suit, i.e. the parties which can be arrayed either as plaintiff(s) or defendant(s). Rule 1 deals with plaintiffs and Rule 2 permits the Court to direct separate trials. Rule 3 indicates who can be the defendants. To Rules 1 and 3, Rule 8 is in the nature of the proviso, so that with the permission of the Court, without either following the joinder prescribed by Rule 1 and 3, the person who can be called a representative of others i.e. either plaintiff or defendant may continue or defend the action. Once the permission is so granted under Rule 8, the legal effect of such permission is if the permission is in favour of the plaintiff the suit is deemed to have been instituted by every one whose interest is permitted to be represented by the plaintiff and if the permission is for the defence, the representative defendant who represents the interest of all those for whom the representation is allowed. To both these categories the term "representative suit" is commonly applied. Though therefore the primary and initial requirement of Order 1 is to have the parties joined by themselves upon satisfaction of the conditions of Rule 8 and because of the necessities arising out of obvious convenience to further the ends of a given cause, the Code postulates tenability of such action. Obvious reason for enacting such an exception is the principal anxiety to make convenient, speedy as well as effective modality of justice available. There may be several persons who remain silent under oppressed conditions and aggressions of their rights and yet one amongst them may shout for justice on behalf of all. Law permits the cause of others to be represented in such type of action so that justice is done and injustice is banished.
There are serious consequences attached to the decision one way or the other rendered in such representative action and it is well settled that the decrees made in such suits may not be open to challenge because of the rule of res judicata under Section 11 read with Explanation VI with regard to a public right or a private right which can be claimed in common by the class of persons. Though firstly, therefore, it is fundamental that decrees passed in suits would bind only those who are parties to the actions or to the extent the party before the Court represents the others, it appears that with regard to matters of public right, decrees made in representative suits may bind even known and unknown persons. To achieve this result the anxiety should be, firstly, to ascertain the persons as far as possible for whom the representation is sought under Rule 8 (1) and, secondly, the enabling power should not be exercised by the Court without issue of notice about the institution of such suit to the person or persons on where behalf such a representation is sought. In the entire Code there is clear legislative concern indicating that Court should only make judicial orders after hearing the persons likely to be affected by any decision in any cause. Permitting the person to sue as a representative of another is a matter of far-reaching effects as it is likely to affect the interests of those who may not participate as the suit proceeds to hearing. Such persons are entitled obviously to put before the Court the objections to the filing of the suit, to the capacity of the representative who seeks either to be the plaintiff or defendant and even to the merits of the cause which is tried to be put before the Court in the shape of reliefs prayed. All this is possible if the party who is sought to be represented by others is afforded an opportunity of making objection.
Keeping in view this basic requirement of the hearing necessary in any cause, the terms of Rule 8 will have to interpreted. As stated earlier, it is an exception to the general rule and being an exception, all its conditions will have to be appropriately satisfied. The requirement stated by the second lib of Rule 8 (1) and its obvious purpose cannot be overlooked while considering the process of granting permission in representative actions. The preposition "But" with which the latter part opens is significant and by itself it carries the sense of the procedure which the Court is required to follow. The term "But" is equivalent so as to mean "except", "unless" as well "if not". The words in the second part which make it necessary for the Court to give notice of the institution of the suit are also significant, for, the notice is not be given after permission is accorded but after the institution of the suit and before the permission is accorded. Even the requirement that as far as possible personal service should be resorted to and only in case where there are number of persons whom for any other good cause such service is not practicable the mode of public advertisement should be followed, is also indicative that before the Court accords permission of representation in the cause, the notice of institution of such a suit has to be given to the persons likely to be affected or interested in that cause. All this requirement on clear policy underlying Rule 8 should precede the grant of permission in a representative action; or else, the very purpose of giving the notice would be lost. If the body of persons on whose behalf the presentation is sought, be ascertainable or numerically small, it is obvious that personal service as far as possible will have to be resorted to. If on the other hand Court comes to the conclusion that it is a fluctuating body or a group of persons like community or class whose interest is being represented where it is not possible to ascertain the individuals with any certainty or for the reasons of convenience personal service is not possible, then the notice by public advertisement is treated as a good notice. After such notice is given, as stated earlier, the parties to whom such a notice is addressed have valuable rights of making appropriate objections which may include even bona fide challenge to the capacity of a given representative. It is for the Court to decide whether one or more persons out of the numerous persons for or against whom the action is brought should be permitted to sue or be sued against. That also shows that without giving a prior notice so as to make objections, Court will not be in a position even to make appropriate orders with regard to persons who may be permitted to sue or be sued in a suit as the representative of others.
ORDER 1 RULE 10 :
Supreme Court of India
Kasturi vs Uyyamperumal & Ors on 25 April, 2005
Let us therefore confine ourselves to the provision of Order 1 Rule 10 sub-rule (2) of CPC which has already been quoted hereinabove. From a bare perusal of sub-rule (2) of Order 1 Rule 10 of the CPC, we find that power has been conferred on the Court to strike out the name of any party improperly joined whether as plaintiff or defendant and also when the name of any person ought to have been joined as plaintiff or defendant or in a case where a person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In the present case, since we are not concerned with striking out the name of any plaintiff or defendant who has been improperly joined in the suit, we will therefore only consider whether the second part of sub-rule(2) Order 1 Rule 10 of the CPC empowers the Court to add a person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
In our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.
As noted hereinearlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker Vs. Small 1834 (40) English Report 848 made the following observations:
"It is not disputed that, generally, to a bill for a specific performance of a contract for sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a Court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as in law, the contract constitutes the right and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it."
The aforesaid decision in 40 E.R. 848 was noted with approval in (1886 ) 2 Ch. 164 (De Hogton v. Money ) at page 170 Turner, L.J. observed:
"Here again his case is met by (1834) 40 E.R. 848 in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed."
From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.
. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party.
Supreme Court of India
Razia Begum vs Sahebzadi Anwar Begum & Others on 23 May, 1958
When a declaratory judgment has been given, by virtue of s. 43, it is binding not only on the persons actually parties to the judgment but their privies also, using the term 'privy' not in its restricted sense of privy in estate, but also privy in blood. Privity may arise (1) by operation of law, for example, privity of contract; (2) by creation of subordinate interest in property, for example, privity in estate as between a landlord and a tenant, or a mortgagor and a mortgagee; and (3) by blood, for example, privity in blood in the case of ancestor and heir. Otherwise, in some conceivable cases, the provisions of s. 43, quoted above, would become otiose.
As a result of these considerations, we have arrived at the following conclusions:-
(1) That the question of addition of parties under r. 10 of 0. I of the Code of Civil Procedure, is generally not one 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; but in some cases, it may raise controversies as to the power of the court, in contra distinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in s. 115 of the Code;
(2)That in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation;
(3)Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy ;
(4)The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of ss. 42 and 43 of the Specific Relief Act (now section 34 and 35) ;
(5)In cases covered by those statutory provisions the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6)The result of a declaratory decree on the question of status such as in controversy in the instant case affects not only the parties actually before the court but generations to come, and, in view of that consideration, the rule of I present interest' as evolved by case law relating to disputes about property does not apply with full force; and
(7)The rule laid down in s. 43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrower in one sense and wider in another.
Supreme Court of India
Mohan Raj vs Surendra Kumar Taparia & Ors on 12 August, 1968
No doubt the power of amendment is preserved to the court and O. 1, r. 10 enables the court to strike out parties but the court cannot use O. VI, r. 17 or O. 1, r. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see s. 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure' Code cannot be used as curative means to save the petition.
Supreme Court of India
Ramesh Hiranand Kundanmal vs Municipal Corporation Of Greater ... on 4 March, 1992
Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order I Rule 3, to avoid multiplicity of suit and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendent even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before 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.
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 touch stone of Order I 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.
The case really turns on the true construction of the Rule in particular the meaning of the words "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit." The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action.
Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:- "The test is `May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."
The courts below, therefore, failed to note that the second respondent has no direct interest in the subject-matter of the litigation and the addition of the respondent would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. By the joining of the party would embarrass the plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the Rule in such cases. We are, therefore, of the view that the courts below were wrong in concluding that the second respondent is a necessary or a proper party to be added as a defendant in the present suit instituted by the appellant. We according allow the appeal and set aside the impugned judgment. No order as to costs.
Pankajbhai Rameshbhai Zalavadiya V. Jethabhai Kalabhai Zalavadiya (deceased) through Legal Representatives and Others reported in 2017 (9) SCC 700 and stated that Order 1 Rule 10 of the CPC., enables the Court to add any person as a party at any stage of the proceedings, if such a person is a proper party and submitted that in view of Order 1 Rule 10 of the CPC., r/w. proviso to Section 21 (2) of the Limitation Act, the implead application cannot be said to be barred by limitation. The relevant portion of the said decision reads as follows:
Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.
In Ramprasad Dagaduram V. Vijaykumar Motilal Hirakhanwala [AIR 1967 SC 278], a bench by majority held that the legal representatives of a party can be added under Order 1 Rule 10 of the Code, but the date on which they were impleaded shall be the date on which the suit was instituted by or against them. This Court, though it concluded that the Court has got the power to join a particular person as a party under Order 1 Rule 10 of the Code, did not interfere in the matter inasmuch as this Court found that the suit was barred by limitation. It is relevant to note that the said suit was of the year 1958. Since the Limitation Act, 1963 (now in force) was at that time not in existence, this Court applied the old limitation law and held that the suit was barred by limitation. As of now, the proviso to Section 21(1) of the Limitation Act 1963 empowers the Court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new plaintiff or defendant was due to a mistake made in good faith. Therefore, it is open to the plaintiff in the matter on hand to prove “good faith” on his part in not including the legal representatives of deceased defendant no. 7, during the course of trial of suit.
In Mumbai International Airport vs., Regency convention Centre reported in 2010 (5) ALD (SC) = AIR 2010 SC 3109 the Hon’ble Apex court gave some illustrations regarding exercise of discretion for adding of parties as follows:-
“ 1) If a plaintiff makes an application for impleading a
person as a defendant on the ground that he is a necessary party
the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for nonjoinder of a necessary party.
2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary
party in so far as the prayer for actual possession.
3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.
4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party.
On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms.
Applicability of Order 1 Rule 10 C.P.C., in different situations :
(i) Sec.92 C.P.C., proceedings:-
It is open to a court to add a party as defendant in a suit
under Sec.92 C.P.C., just as in any other suit. Its right to sue is
regulated by Order 1, Rule 10 C.P.C.,
(ii) Partition Suit:-
In a suit for partition the principle of dominus litus is not
strictly applicable since the plaintiff and also the defendants will be
sharers.
(iii) Specific performance suit:-
The plaintiff who has filed the suit for specific performance of
the contract for sale is dominus litus and cannot be forced
to add parties against whom he does not want to fight unless it is a
compulsion of the rule of law.
(iv) Execution petition:-
In Changanti Lakhmi Rajyam and others Vs., Kolla Rama Rao
reported in 1998(1) ALD 497 the Division Bench of Hon’ble A.P., High
Court held that Order 1 Rule 10 C.P.C., is applicable to suits and
appeals and not applicable to the execution proceedings. The heirs of
J.Dr., if any will have to agitate Under Order 21 Rule 58 or Rule 101
C.P.C.,
(v) Cause of action:-
In Mohannakumaran Nair Vs. Vijayakumaran Nair reported in
AIR 2008 SC 213 the Hon’ble Apex court observed that Application of
doctrine of dominus litus is confined only to the cause of action which
would fall within Sections 15 to 18 of the Code of Civil Procedure. It
will have no application in a case where the provision of Section 20
thereof is sought to be invoked.
DIFFERENCE BETWEEN ORDER 1 RULE 10 AND AMENDMENT OF PLEADINGS :
Order 1 Rule 10(2) C.P.C., 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. On the other hand Order 6 Rule 17 of the Code deals with amendment with the leave of the court by a party of his own pleadings if such
amendment is necessary for determination of the real question in controversy. Order 6 Rule 17 is therefore wider in its scope and ambit than Order 1 Rule 10, though the later also confers power on even the court to add or strike off a party to the action. The object of Order 1 Rule 10(2) C.P.C., is to bring before the court all persons at the same time who are involved in the dispute relating to the subject-matter so that the disputes may all be determined at the same time without
delay, inconvenience and expenses on a separate actions and trials. Order 6 Rule 17 of the Code deals with amendment with the leave of the court by a party of his own pleadings, if such amendment is necessary for determination of the real question in controversy. Order 1 Rule 10(2) C.P.C., confers powers also on the court without a motion from any of the parties to exercise the power, whereas Order 6 Rule 17 enables a party to seek amendment
Section 21 of Limitation Act provides that wherever on
institution of a suit a new plaintiff or defendant is substituted or
added, the suit shall, as regard him, be deemed to have been
instituted when he is so made a party. However, if court is satisfied
that omission to include a new plaintiff or defendant was due to
mistake made in good faith, it may direct that the suit as regards to
such plaintiff or defendant shall be deemed to have been instituted on
any earlier date.
TRANSFEREE PENDENTE LITE , ENTITLED TO IMPLEADMENT:
The Supreme Court in Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Ltd. and Ors. (2013) 5 SCC 397 examined the question whether a transferee/purchaser pendente lite would be entitled to impleadment when there is a Court injunction restraining further transaction or alienation of the suit property in a suit for specific performance. This judgment refers to Section 52 of the Transfer of Property Act, which incorporates the doctrine of lis pendens with the object and purpose to strike at the attempts by the parties to the litigation to circumvent the jurisdiction of the court. The provision binds alienees acquiring any immovable property during the litigation. Section 19 of the Specific Relief Act, 1963, the judgment holds, manifests that a contract of specific performance may be enforced against parties to the contract and the person mentioned in the said Section. Clause (b) of the Section 19 makes it clear that a suit for specific performance cannot be enforced against a person, who is a transferee from the vendor for valuable consideration and without notice of the original contract. M.Y. Eqbal, J. on consideration of the facts held that the appellant therein had entered into a clandestine transaction and had got the property transferred. The appellants were not bona fide purchaser without notice. Nevertheless it was ruled and held that the High Court, including the Division Bench, had not gone into the question whether a person who purchases a property in violation of an order of injunction and having such sufficient notice, need be added as a party for passing the effective decree. Reference was made to several decisions and Section 52 of the Transfer of Property Act and it was held that the ends of justice would be met if the appellant therein was added as a party defendant in spite of the clear violation of interim injunction orders.
The judgment by M.Y. Eqbal, J. had referred to Surjit Singh and Others v. Harbans Singh and Others (1995) 6 SCC 50, where a suit for partition was filed and a preliminary decree had been passed between the legal heirs of the original owners and there was also an order restraining the parties or otherwise transferring in any manner any part of the property. The impleadment application filed by the assignee, under Order XXII Rule 10, was allowed by the trial court and upheld by the High Court, but the order was set aside by the Supreme Court on the ground that when the Court intends a particular state of affairs to exist while it is in seisin of a lis, then such state of affairs is not only required to be maintained, but is presumed to exist till the Court orders otherwise. It is the duty of the Court and also the right of the parties adversely affected to treat the alienation as having not taken place for all purpose. This decision was distinguished in Savitri Devi v. District Judge, Gorakhpur and Others (1999) 2 SCC 577 on the ground that in the latter case the transferees, it was claimed, were bona fide purchasers for value and in good faith. Whether or not their stand was correct could only be decided after impleadment in the suit and if the application for impleadment was thrown out without decision on the question, the said respondents would come up for claim in a separate suit for proceedings, thereby resulting in multiplicity of proceedings. Surjit Singh's case (supra) was distinguished on the ground that in the said case, the assignees had knowledge of the injunction order passed by the Court.
In Vidhur Impex and Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd. & Ors. 2012 (8) SCC 384, the following broad principles for disposal of an application for impleadment were laid down:-
"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
41.1. 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.
41.2. 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.
41.3. 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.
41.4. 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.
41.5. 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.
41.6. 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."
Relying upon Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors., 1992 (2) SCC 524, it was observed that Order I Rule 10 gives wide discretion to the Court to meet every case or defect of a party and then proceed to decide whether the person is necessary or a proforma/proper party, whose presence in the Court is essential for effective determination of the issues involved. The said party should be one who would be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless the person is a party to the proceedings. Mere interest in the litigation would not be sufficient. The true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather what would be the result on the subject matter of the action if those rights were affected. The core test being whether the order which the plaintiff is asking for, directly affects the intervener in the enjoyment of his legal rights.
To the same effect is the decision of this Court in Amit Kumar Shaw v. Farida Khatoon [(2005) 11 SCC 403] wherein this Court held that a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations the transferee pendente lite can be added as a party- defendant to the case provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires interest in the entire estate that forms the subject-matter of the dispute. This Court observed: (SCC p. 411, para 16) "16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
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