IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24881 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= MIYANA NOORMAHMAD HAJIBHAI MANEK - Petitioner(s) Versus Q MBHAI USMANBHAI & 6 - Respondent(s) ========================================================= Appearance :
MR SP MAJMUDAR for Petitioner(s) : 1,MRYJPATEL for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1,3 - 7.
MR MANISH P MEHTA for Respondent(s) : 2, MR AB GATESHANIYA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. By way of this petition under Article-227 of the Constitution of India, the petitioner seeks to challenge the order passed by Addl. Civil Judge, Surendranagar dated 7/4/2007 below Exh.36 preferred by the petitioner herein for being joined as a party defendant in Civil Suit No.61/1998 filed by respondent nos.1 to 5.
2. Facts shortly stated be thus –
2.1) Respondent nos.1 to 5 –original plaintiffs have preferred Regular Civil Suit No.61/1998 against respondent nos.6 and 7 –original defendants inter alia for possession of the property. Record reveals that vide judgment and order dated 6/1/1999 the aforesaid Civil Suit was decreed in favour of the plaintiffs. Being aggrieved and dissatisfied by the said decree which came to be passed on 6/1/1999, Regular Civil Appeal No.12/1999 was preferred by the original defendant no.1. Record also reveals that the said Regular Civil Appeal was allowed and the judgment and decree passed by the Joint Civil Judge, (J.D.), Surendranagar in Regular Civil Suit No.61/1998 came to be set aside on the ground that the decree was an ex-parte decree and the trial Court ought to have given opportunity to the defendant no.1 to lead evidence in the Suit. The Appellate Court accordingly remanded the entire suit to the trial Court for fresh hearing after affording opportunity to defendant no.1 to lead evidence. At that stage, the petitioner herein claiming to have right, title and interest in the suit property, preferred an Application –Exh.36 before the Trail Court for being impleaded as defendant in Regular Civil Suit No.61/1998. The Civil Court held that the petitioner was not a necessary party nor a proper party and accordingly rejected the Application. Feeling aggrieved by the order passed by the learned Joint Civil Judge (J.D.), Surendranagar, the present petition has been preferred.
3. The petition was admitted on 21/2/2008 by issuing rule. At the time of admission of this petition, the Court also passed an interim order staying the further proceedings of Regular Civil Suit No.61/1998 pending in the Court of Civil Judge (J.D.), Surendranagar.
4. Mr.Sharvil Majmudar learned counsel appearing for the petitioner, vehemently submitted that the petitioner is the original owner of the suit property. Mr.Majmudar submitted that the suit property was allotted to the petitioner under the order passed by the Mamlatdar, Wadhvan dated 3/7/1981. He submitted that all these facts have been suppressed by the original plaintiff. He submitted that the original plaintiffs (respondent nos.1 to 5 ) do not have any right, title or interest in the suit property. He submitted that the Court below committed a jurisdictional error in over- looking thumping evidence which were produced along with the application, more particularly the sale deed –Mark 34/1. Mr.Majmudar submitted that the petitioner is a necessary and a proper party and if the petitioner is not joined as a defendant in the Civil Suit, then it may result into multiplicity of proceedings. Mr.Majmudar therefore, urged that this petition be allowed and the petitioner may be ordered to be impleaded as a party defendant in the original suit.
5. On the other hand Mr.A.B.Ghateshvrya, learned Counsel appearing for the respondents opposed this petition submitting that no error, much less an error of law could be said to have been committed by the Court below in rejecting the application of the petitioner for being joined as a defendant in the suit warranting any interference at the end of this Court in exercise of supervisory jurisdiction under Article-227 of the Constitution.
6. Having heard learned Counsel for the respective parties and having gone through the materials on record, the only question for my consideration in this petition is as to whether the Court below committed an error of jurisdiction in rejecting the application Exh.36 filed by the petitioner herein for being joined as a party defendant.
7. The question of addition of party under Order-1, Rule-10 is generally not one of initial jurisdiction of the Court, but of sound judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. I may quote with profit the following observations made by Supreme Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others, (2010)7 SCC 417.
“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 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:
“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 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.”
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 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 8 court is given the discretion to add as a party, any person who is found to be a necessary party or proper 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 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.
16. The learned counsel for the appellants relied upon the following observations of a two-Judge Bench of this Court in Sumtibai v. Paras Finance Co. [2007 (10) SCC 82] to contend that a person need not have any subsisting right or interest in the suit property for being impleaded as a defendant, and that even a person who is likely to acquire an interest therein in future, in appropriate cases, is entitled to be impleaded as a party:
“9.Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperuma [2005(6) SCC 733]. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute.........
14....It cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. If C can show a fair semblance of title or interest he can certainly file an application for impleadment.”
22. 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.
23. 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.”
into consideration the materials on record, more particularly the claim put-forward by the petitioner herein with respect to the suit property, the Court below ought to have exercised jurisdiction in favour of the petitioner by allowing the application. The petitioner has annexed the order passed by the Collector, Surendranagar dated 3/7/1981 whereby the land was allotted in favour of the petitioner. The petitioner has also placed on record many other documents in the form of Revenue Records etc. on the basis of which it could be said that though the petitioner may not be a necessary party, but still he would be a proper party and his presence would be required for effective adjudication of the Suit. I may state that the original suit preferred by the plaintiffs is for possession. The Court below, in my opinion, committed a serious error incoming to the conclusion that if the petitioner is permitted to be added as a party defendant, it will alter nature of the Suit. The petitioner herein claims to be the owner of the property as well as in possession of the property. Under such circumstances, I am of the view that the Court below ought to have exercised discretion in favour of the petitioner and the petitioner should have been permitted to be impleaded as a party defendant.
9. In the aforesaid view of the matter this petition succeeds. The order passed by the Joint Civil Judge and JMFC, Surendranagar dated 7/4/2007 passed below Exh.36 in Regular Civil Suit No.61/1998 is hereby set aside. Application Exh.36 preferred by the petitioner in Regular Civil Suit No.61/1998 filed in the Court of Civil Judge (J.D.), Surendrangar is hereby allowed and it is ordered that the petitioner be impleaded as a defendant in the aforesaid Suit. Considering the fact that the Civil Suit is of 1998, the Civil Judge, Surendranagar is hereby directed to take-up for hearing the aforesaid Civil Suit as expeditiously as possible and dispose of the same, preferably by 30th August, 2013. Rule is made absolute.
(J.B.PARDIWALA, J.) Ashish N.