Heard Shri Brijesh Yadav "Vijay", learned counsel for the petitioners, learned Standing Counsel appearing for the opposite party no. 2, Shri Azad Khan, learned counsel for the opposite party no.3 and perused the record.
By means of the present writ petition, the petitioners have challenged the impugned order dated 30.11.2015 passed by Additional District Judge, Court No.2, Sultanpur by which the petitioners' application for impleadment in Regular Suit No.192/97 has been rejected.
Facts in brief of the present case are that opposite party no.4/Daya Ram filed a suit for permanent injunction in respect of the property mentioned in paragraph 3 of the plaint, which reads as under :-
"यह कि गाटा सं. १५ । रकबा ०.२७८ यधपि राजस्व अभिलेखों में बंजर के खाते में दर्ज है मगर उसमे वादी के दरख्तान आज किस्म आम ५ महुआ ६ जामुन ७ नीम ५ बबूल २ बांसकोठ ३ बैर २ आछी ५ कनैल १० पेड़ मौजूद है जिसमे लगभग १५ साल से लेकर सैकङों साल के दरख्तान स्थित है विदित रहे कि विवादित दरख्तान में कुछ पेड़ परपाजा वादी कुछ आज वादी कुछ पिता वादी व कुछ पेड़ स्वयं वादी के लगाएं व सैये पर खये है । इन दरख्तान के फल व लकड़ी का इस्तेमाल तथा बॉसकोठ में बास का इस्तेमाल वतौर मालिक वादी परपाजा आजा पिता व अब वादी स्वयं करते चले आ रहे है इन दरख्तान पर वक्त कायमी दरख्तान से यानी ज. वि. के बहुत पहले से वादी व उनके पूर्वजो का ही कब्ज़ा व दखल उपयोग व उपभोग बराबर बिना किसी रोक टोक के चला आ रहा है |"
The prayer made by the petitioners reads as under :-
"डिग्री हुकुम इम्तिनाई दवामी बहक वादी खिलाफ प्रतिवादी गण इस आशय की सादिर करमाई जावे कि प्रतिवादी गण को हमेशा हमेशा के लिए मनाकर दिया जावे की वह निर्णाई दरख्तान व बॉसकोठ के वादी के शांतिपूर्ण कब्ज़ा व दखल में कोई हस्तछेप न करे और दरख्तान व बॉसकोठ निर्णाई को न काटें और न किसी अन्य तरीके से ही निर्णाई दरख्तान व बॉसकोठ की छतिपूर्ति करें |"
On 21.08.2015, petitioners moved an application for impleadment in the said suit under Order 1 Rule 10 CPC, allowed by order dated 18.10.2010 passed by trial Court, challenged by the opposite party no.4 by filing Civil Revision No.9/2011, allowed by order dated 30.11.2015.
Learned counsel for the petitioners while challenging the impugned order submits that the petitioners are a necessary and proper party for adjudication of the dispute involved in the present case as opposite party no.4 has filed a suit against the Gram Panchayat, no cause of action has occurred in his favour. So, keeping in view the above said facts, the order dated 30.11.2015 passed in Civil Revision No.9/2011 is liable to be set aside.
In support of his argument, he has placed reliance on the judgment given by a Division Bench of this Court in the case of Dr. Shyam Chandra Srivastava vs. Estate of Padmasri Smt. Savitri Sahni 2010 (28) LCD 799, wherein paragraph no.26 held as under :-
"26.In the case reported in AIR 1995 Allahabad 7 (Committee of Management, Ratan Muni Jain Inter College and another. Vs. III Additional Civil Judge, Agra and others) as well as in AIR 1995 298 (Hridaya NarainSingh. Vs. Lal and another), this Court while interpreting the Order I Rule 10 of the Code of Civil Procedure, held that it is the discretion of the court to add certain persons as party keeping in view the facts and circumstances of a particular case. For convenience, relevant portion of the Committee of Management, Ratan Muni Jain Inter College and another's case is reproduced as under:-
"The theory of dominus litus should not be over-stretched because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is necessary party, the court can order such persons to be impleaded. Merely because the plaintiff does not choose to implead a person, is not sufficient for rejection of an application for being impleaded. The provisions of Order I Rule 10 (2) C.P.C. are very wide and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may at any stage of the proceedings order that the name of any party, 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. So the learned Addl. Civil Judge was totally wrong in believing that Sri Moti Lal Jain's impleadment was not necessary for proper adjudication of the case. Although at page 4 of the judgment (page 153), while dealing with the point of dominus litus that the court may consider whether the joining of a person is essential or not but still he has proceeded to delude himself that even without the impleadment of Sri Moti Lal Jain, an effective decree could be passed. It amount to play Hamlet without the prince of Denmark."
After hearing learned counsel for petitioners and going through the records, in order to decide the controversy involved in the instant matter, it is necessary to go through the provisions as provided under Order 1 Rule 10(2) C.P.C., which reads as under :-
"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. "
From the perusal of order 1 Rule 10 (2) CPC, it covers two types of 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-R. (2) of O.1, R.10, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court.
The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications.
O. 1, R. 10 (2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of 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. It is true that the discretion has to be exercised judicially but at the same time the concerned civil or appellate court where the suit on appeal is pending has also to take into consideration that the party which is necessary to be impleaded will be put to a greater difficulty if not impleaded by the plaintiff who may have ulterior motives of not impleading such party and if the decision is given which may affect the interest of the said party greater prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff because he will have full opportunity to defend his rights and interest as against aggrieved party who has been impleaded as a party to the suit.
The important aspect which should be looked into by the Civil Courts while deciding the applications under O.1, R.10(2), C.P. Code is to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded as a result of allowing necessary party to be impleaded in the suit (See Baijnath v. Ganga Devi A.I.R. 1998 Raj. 125).
The expression "to settle all questions involved" used in O.1, R.10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof.
The Parliament in its wisdom while framing this rule must have thought that all the material questions common to the parties to the suit and to the third parties should be tried once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties (See Abdul Jaleel v. Aishabi A.I.R. 1992 Karn. 380).
The word "At any stage" in Order 1 Rule 10 (2) CPC means that there is no requirement of law that an application for addition of a party as defendant must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision (See. Gurmauj Saran v. Joyce C. Salim A.I.R. 1990 Del. 13 (D.B.)).
The use of the expression "at any stage of proceedings" in O.1, R.10(2) shows that the power vested in the Court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party (See Sardar Ali Khan v. Special Deputy Collector A.I.R. 1973 Andh. Pra. 298 (D.B.).
Under Order 1 Rule 10(2) C.P.C., the power to add a party to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.
Further, the revisional court while rejecting the petitioner's application for impleadment has given a finding, relevant portion quoted herein below :-
"निगरानीकर्ता/वादी के विद्वान अधिवक्ता द्वारा माननीय इलाहाबाद उच्च न्यायालय की विधि व्यवस्था मोहम्मद फारुख बनाम जिला जज इलाहाबाद व अन्य १९९२ (२०) ए. एल. आर. पेज ८७६ को प्रस्तुत कर कथन किया गया है कि आदेश-१ नियम-३ व दुरभिसंधि से प्रार्थी के विरुद्ध मुकदमा निर्णीत करवाने की अंदेशा -वादी को यह अधिकार है कि वह किसको प्रतिवादी के रूप में प्रतिस्थापित करे । निगरानीकर्ता/वादी की ओर से माननीय मध्य प्रदेश उच्च न्यायालय इंदौर बेंच की विधि व्यवस्था श्रीमती मीरा रानी व अन्य बनाम घनश्याम शर्मा व अन्य २००८ (२) सी. पी. सी. ७८ (मध्य प्रदेश) प्रस्तुत की गयी है जिसमें यह सिद्धांत प्रतिपादित किया गया है कि Civil Procedure Code 1908- Order 1 Rule 10 Additionl of party-only a necessary or proper party may be added-Mere interest of a party in Suit can not be true test for being impleaded as party-Plaintiff is dominus Litus and can not be forced to add parties against whom he does not want to fight unless was compulsion by Law.
Thus, in view of the above said facts as well as law laid down by Hon'ble the Apex Court in the case of Savitri Devi Vs. District Judge, Gorakhpur, 1999 (2) SCC 577, after considering the provisions of Order 1 Rule 10 CPC and the other law on the point in issue, namely, Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18, Ramesh Hirachand Kundanmal Vs. Municipal Corpn. Of Greater Bombay, 1992 (2) SCC 524 held as under:-
"Order I, Rule 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the 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 in the Code.
10. In Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors. [1983]1SCR898 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII C.P.C. The Court said:
...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard....
11. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. [1992]2SCR1 this Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said:
"The case really turns on the true construction of the rule in particular the meanin