R.C. Patnaik, J.
1. This revision raises the question whether rejection of an application under Order 1, Rule 10, Sub-rule (2) of the Code of Civil Procedure for addition of a party operates as res judicata if at a later stage of the suit an application is made under Order 6, Rule 17 of the Code to implead the said party.
2. The petitioner brought an action for declaration of title, confirmation of possession and the relief of permanent injunction. He alleged that his father purchased the property in dispute in 1963 by a registered sale deed from one D. Buchibabu Dora who was the brother of defendant No. 1. In a partition, which took place around 1949, Defendant No. 1 (Opposite party No. 1) and his brothers, namely, D. Buchibabu Dora and D. Rammurty Dora, were allotted specific properties and the property in dispute was in possession and enjoyment of D. Buchibabu Dora. There was some mistake in the description of property. Registered document rectifying the mistake was obtained in 1975. When in a proceeding under Section 145 of the Code of Criminal Procedure the opposite parties' (Defendants')possession was declared, he brought action for the relief stated above. On 2-4-1980, an application under Order 1, Rule 10 of the Code was filed for impletion of D. Buchibabu Dora on the ground that he was a necessary party to the action. The application was rejected on 10-5-1980 on the ground that he was not a necessary party to the suit. Thereafter, on 12-11-1980 an application was filed under Order 6, Rule 17 of the Code for impletion of the brothers of opposite party No. 1 (Defendant No. 1), namely, D. Buchibabu Dora and D. Rammurty Dora, as defendants. It was alleged that having regard to the pleas taken by the defendants, it was just and proper that the two brothers of opposite party No. 1 (Defendant No. 1) should also be impleaded. It was further averred that since the question of earlier partition and allotment of the suit property to the share of Buchibabu Dora was in controversy, his prayer for amendment should be allowed. Amendment of the reliefs by seeking recovery of possession and mesne profits from opposite parties 1 to 4 was also prayed for.
3. The opposite parties opposed the motion for amendment alleging that the amendment would alter the nature of the suit and would introduce a new case; besides, the move was belated and mala fide. The trial court being of the view that earlier order dated 14-5-1980 rejecting the petitioner's application for impletion of Buchibabu Dora under Order 1, Rule 10 of the Code stood as a bar, rejected the prayer. It, however, permitted amendment, of the reliefs.
4. The counsel for the parties relies upon certain authorities. I shall notice a few of them. It was the contention of the petitioner's counsel that earlier rejection of an application under Order 1, Rule 10 of the Code did not operate as res judicata and a subsequent application under Order 6, Rule 17 of the Code was entertainable, whereas Mr. Ramdas for the opposite parties strenuously urged that the earlier rejection of the self-same prayer operated as res judicata.
5. Sub-rule (2) of Order 1, Rule 10 of the Code provides that 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, be struck out to meet every case of defect of parties. The power should not be exercised arbitrarily, but on judicial principles. The object of the rule 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 separate actions and trials. Sub-rule (2) 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. The former is called a necessary party and the latter a proper party. Sub-rule (2) of Order, 1. Rule 10 of the Code is, therefore, attracted when the question is covered by one of the above.
6. 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 latter also confers power on even the Court to add or strike off a party to the action. Sub-rule (2) of Order 1, Rule 10 is attracted when the name of any party, whether as plaintiff or defendant, has been improperly joined. The Court then has the discretion to strike off the name. It is attracted when a necessary party who ought to have been joined but not joined -- i.e., the person in whose absence no effective decree can at all be passed -- and where a proper party without whose presence the questions in the action cannot be completely and effectually adjudicated upon has been left out. It does not apply where a person would be incidentally affected by the judgment. To the extent aforesaid Order 6, Rule 17 would also overlap the field of Order 1, Rule 10. There is also distinction namely Sub-rule (2) of Order 1, Rule 10 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. Where an application is made under Order 1, Rule 10, Sub-rule (2) of the Code for impletion of a party either on the ground that he is a necessary party or proper party and the application is rejected and reaches its finality, it would not be open to a party at a later stage of that proceeding to seek the relief on the self-same ground by taking recourse to Order 6, Rule 17. He may do on the basis of subsequent events, changed situation, fresh facts, etc. The rule is founded not on the principles of res judicata but on the principles of propriety. Such decisions are not the final decisions in the suit but are interlocutory in nature. In the case of Satyadhyan Ghosal v. Smt. Deorajin Debi AIR 1960 SC 941 followed in AIR 1972 SC 1201 : United Provinces Electric Supply Co., Ltd. v. T. N. Chatterjee it has been held :
'Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order.'
This aspect has been set at rest by an authority of the Supreme Court in AIR 1964 SC 993 : Arjun Singh v. Mohindra Kumar, wherein it has been held :
'It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disopsed of the court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order IX, Rule 7, would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to 'set the clock back' does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound to that order at later stages, so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts ' and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata.'
A few decisions of the High Court may now be referred. In AIR 1972 Orissa 263 : Abdul Sakoor Umar Sahigara v. Harachand Dey, it has been held that rejection of an earlier application calling upon the plaintiff to produce accounts book, etc. would operate res judicata when similar application is made at a later stage, unless the application is based upon new grounds. AIR 1974 A11422: KhalilAhmad v. Addl. District Judge, Gorakhpur was cited by the counsel for the petitioner. It lays down that where an application under Order 22, Rule 4 to bring the legal representative of a deceased party on record has been dismissed, the court can in exercise of power under Order 1, Rule 10, Sub-rule (2) implead the legal representative. J cannot agree with this view and I get support from a decision of this Court reported in (1974) 40 Cut LT 885, Durga Charan Parida v. Basanta Kumar Parida, wherein it has been held :
'It can never be the intention of the Code to take away this valuable right accrued to the legal representatives of the deceased defendant by taking resort to the provision contained in Order 1, Rule 10, Civil Procedure Code. To hold otherwise would amount to going against the scheme of the Code and would put the litigants to great hardship and prejudice. Therefore, I am of the opinion that the trial Court having dismissed the plaintiffs application for substitution, it had no jurisdiction to entertain an application under Order l. Rule 10, Civil Procedure Code and to allow the same.'
In AIR 1971 Andh Pra 332 : Medam Sankaranarayana v. Goddala Triupathi Rao, an application for amendment had been dismissed for default. It was held that a fresh application was maintainable. There can be no quarrel over this proposition because there was no decision on merits and Order 9. Rule 9 has no application to dismissal of applications of interlocutory nature for default.
7. Let me now consider the motion lor amendment against the aforesaid backdrop of law. The application under Order 1, Rule 10, Sub-rule (2) of the Code of Civil Procedure for impletion of D. Buchibabu Dora was made on the sole ground that he was a necessary party and on no other ground. It was not even alleged that he was a necessary party. The application for amendment was tiled for impletion of two persons as defendants; the vendor of the plaintiffs father who was also the brother of defendant No. 1 and D. Rammurty Dora, the other brother of the said defendant No. 1. It was contended that having regard to the fact that they were the vendor and the brother of defendant No. 1, amongst whom an earlier partition and division of property had been alleged, and the pleadings of the defendants, it was necessary that they should be brought on record as defendants. The prayer seeking amendment was based on a wider foundation. The issues involved were different from the one involved in the earlier application filed under Order 1, Rule 10, Sub-rule (2) of the Code. The amendment sought was, therefore, not barred by res judicata nor was liable to be rejected on the grounds of propriety. I recall the words of Privy Council in Ma Shwe Mya v. Maung Mo Hnaung : AIR 1922 PC 249. ' All rules of Court are nothing but provisionsintended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none-the-less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.'
I am of the view that the amendment is necessary to determine the real controversy between the parties. Neither does it cause any prejudice to the other side, substitute any distinct cause of action for another or alter the nature or character of the suit, nor is it in mala fide. Be it noticed that the trial court allowed the amendment of the reliefs.
8. In the result, 1 accept this revision and permit the amendment sought. In the circumstances, however, the petitioner shall pay a sum of Rs. 200/- as costs to the counsel for the opposite parties, who has entered appearance in this revision within one month.