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Jivanlal Damodardas Wani Vs. Narayan Ukha Sali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 6 of 1970
Judge
Reported inAIR1972Bom148; (1971)73BOMLR814; 1972MhLJ64
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantJivanlal Damodardas Wani
RespondentNarayan Ukha Sali
Appellant AdvocateB.Y. Deshmukh, Adv. for R.S. More, Adv.
Respondent AdvocateK.J. Abhyankar, Adv.
Excerpt:
.....circumstances of a particular case. in a suit relating to property, in order that a person may be added as a party, he should be shown to have a direct interest in the subject-matter of the litigation, in exercising its discretion the court will not 'ordinarily' add a party without the concurrence of the plaintiff, but in exceptional cases it can do so where the party sought to be added is a necessary party as distinguished from a mere proper party. a necessary party is a party whose addition is absolutely necessary in order to enable the court to adjudicate effectually and completely on the matter in controversy between the parties i.e. that no decree can be passed in the suit without affecting the rights of the party who is sought to be added and the presence of that party is..........that it was clear from the contention in the pleadings that kamlabai had 'some interest' in the suit property and was, therefore, a necessary party to the suit, that if kamlabai was added as a party - defendant to the suit no prejudice would be caused to the plaintiff, and that the defendant's application for the addition of kamlabai as a party - defendant to the suit should, therefore, be granted. it is from that order that the plaintiff has approached this court in revision. the application made by the defendant for the addition of the said kamlabai is undoubtedly an application under order 1, rule 10 (2) of the code of civil procedure, the terms of which are very wide and empower the court to add any person as a party to a suit, either on the application of one of the parties or.....
Judgment:
ORDER

1. This is an application to revise an order passed by the Civil Judge (J. D) Shahada, dated 8th October 1969, granting an application by the defendant that on Kamalabai be added as a party to this suit.

2. That facts of the plaintiff's case are that the property in question originally belonged to one Dwarkadas Vithaldas, from whom the plaintiff purchased it by a registered sale deed dated 30th March 1964. The defendant was a tenant occupying a part of the ground floor of the said property and the plaintiff by his notice to quit dated 28th September 1967 terminated that tenancy and filed the present suit on the 3rd of January 1968 to eject the defendant. On the 14th of March 1968 the defendant filed a written statement contending, inter alia, that the plaintiff had to title to the said property and that the owner thereof was Kamlabai the wife of the said Dwarkadas from whom the plaintiff claimed to have purchased the property. The defendant thereafter on the 7th of August 1969 made an application that the said Kamlabai be added as a party - defendant to this suit, and the learned Judge by his order dated 8th October 1969 under revision took the view that it was clear from the contention in the pleadings that Kamlabai had 'some interest' in the suit property and was, therefore, a necessary party to the suit, that if Kamlabai was added as a party - defendant to the suit no prejudice would be caused to the plaintiff, and that the defendant's application for the addition of Kamlabai as a party - defendant to the suit should, therefore, be granted. It is from that order that the plaintiff has approached this court in revision. The application made by the defendant for the addition of the said Kamlabai is undoubtedly an application under Order 1, Rule 10 (2) of the Code of Civil Procedure, the terms of which are very wide and empower the court to add any person as a party to a suit, either on the application of one of the parties or even suo motu, if in its opinion that person ought to have been joined or his presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The wide terms of Order 1, Rule 10 (2) have given rise to several conflicting decisions of various courts in regard to its interpretation, but having considered the authorities that were cited before me in the course of the hearing of this revision application. I think the following propositions emerge therefrom :-

1. That the question of addition of parties under Order 1, Rule 10 Civil P. C. 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 : [1959]1SCR1111 ;

2. That in a suit relating to property, like the present one in order that a person may be added as a party, he should be shown to have a direct interest in the subject - matter of the litigation : [1959]1SCR1111 ;

3. In exercising its discretion under Order 1, Rule 10, Civil P. C. the court would not 'ordinarily' add a party without the concurrence of the plaintiff. 41 Bom LR 249 : AIR 1939 Bom 188. I am bound by that decision of a Division Bench of this court, and I respectfully agree with the same because the plaintiff is a dominus litus as far as the litigation in question is concerned. From this it would follow that it is only in exceptional cases that a party would be added as a party - defendant to the suit without the concurrence of the plaintiff .

4. The court would add a person as a party - defendant to a suit without the concurrence of the plaintiff to that suit only where the party sought to be added is a necessary party as distinguished from a mere proper party. This is the view which a single Judge of the Punjab High Court has taken in the case of Banarasidas v. Pannalal, cited above, after considering the various authorities on the point, and it is a view with which I am in agreement, since a person can be joined as a party - defendant to a suit without the concurrence of the plaintiff only in exceptional cases, the only line that the court can draw to distinguish the ordinary rule from an exceptional case would be to distinguish between a 'proper party' and a 'necessary party.' This distinction has been recognised in Order 1, Rule 10, Civil P. C. itself it has been held by a single judge of this court that a real owner is not a necessary party to a suit by the benamidar, but is only a proper party : (1970)72BOMLR827 .

5. A necessary party is, as has been stated in Order 1, Rule 10 (2), Civil P. C. itself a party whose addition is absolutely necessary in order to enable the court to adjudicate effectually and completely on the matter in controversy between the parties. That has been interpreted, in my opinion rightly, to mean that no decree could be passed in the suit without affecting the rights of the party who is sought to be added and the presence of that party is necessary for an effectual adjudication of the questions involved in the suit. It is only when both those conditions are fulfilled that a party could be said to be a necessary party to a suit : AIR1960MP84 .

6. In all the decisions cited above, the application to be added as a party was made by the party himself who was sought to be added and Mr. More on behalf of the appellate sought to distinguish those cases on that ground. In my opinion, however, if such party is a necessary party, as stated above it makes no difference as to who makes the application for the addition of such party, and indeed, under the very wide terms of Order 1, Rule 10 (2). Civil P. C. the court may even add such party suo motu.

3. Having regard to the legal propositions as formulated above, I must now proceed to consider whether on the facts of the present case, Kamlabai is a necessary party to this suit in the sense, (1) that any decision in this suit is bound to affect her rights and (2) that her presence is necessary to effectually adjudicate upon the questions involved in this suit. There is nothing before the court, apart from certain bare statements made by the defendant in the written statement filed by him to show that Kamlabai has a direct interest in the subject - matter of this litigation or, for the matter of that, that she has any right at all in the property in question which would be affected by the decision given in this suit. I have had the written statement in this case officially translated and have perused the same carefully, and I find that there is no statement in the written statement that the property stands or has ever stood in the municipal and/or government records in the name of Kamlabai. The written statement only contains vague statements referring to her as 'the landlord', and to her having rented out portions of the property and recovered rents. The written statement no doubt contains in para 3 thereof, an averment that Kamlabai is the owner of the said property by adverse possession because of those acts, and because she has according to the defendant, been in possession of that property but those averments have no value at all when it is remembered that Kamlabai was after all the wife of the said Dwarkadas Vithaldas in whose name, according to the plaintiff, the property stood at all material times, particularly when Kamlabai herself does not say so and has not come forward to assert any right or title to the property in question. It is difficult to conceive of a case in which a third person can set up and prove a title by adverse possession in Kamlabai by reason of the acts alleged. It is significant indeed that not a single receipt given by Kamlabai for the rent alleged to have been recovered by her has been produced to show in whose name and on whose behalf rents were recovered and the receipts given. I, therefore, hold that on these bare and baseless averments in the written statement of the defendant, it has not been shown that Kamlabai has any direct interest, or for the matter of that any interest at all in the property in question, and the lower court has exercised its discretion unreasonably in ordering her to be added as a party to this suit. I am, therefore, entitled to interfere in revision with the exercise of that discretion by the lower court.

4. In the result, I make the rule absolute and set aside the order dated 8th October 1969 passed by the learned Civil Judge (J. D.) Shahada, in this case, and order that the defendant's application for amendment of the plaint by the addition of Kamlabai be dismissed. The defendant must pay the plaintiff's costs in both the courts.

5. Rule made absolute.


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