Bhagwanti vs Custodian General and another

This is an application by one Tilak Raj Sharma for being impleaded as a party to writ Petition No. 206 of 1974 filed on November 27, 1974,

by Smt. Bhagwanti, against the Custodian General Jammu and Kashmir and the Custodian, Evacuee Property, Jammu.

The case of the applicant is that as respondent No. 2 has vide his order No. RS 91174EP dated November 26, 1974, leased out to him for a

period of one year two rooms in the upper storey of the house in relation to which Smt. Bhagwanti has brought the aforesaid writ petition and as he

cannot get possession of the said rooms in view of the ad interim order directing maintenance of status quo, he is a necessary and a proper party to

the writ petition and it is in the fitness of things that he should be added as a party to the petition.

Mr. B.R. Chowdhary appearing on behalf of the petitioner has opposed the application and has contended that no person can under law be

added as a party to a case merely because he would be incidentally affected by the ultimate judgment that may be passed therein or that he is

interested in the fruit of the judgment.

I have given my earnest consideration to the submissions made by the learned counsel for the parties.

It cannot be disputed that the governing principle for impleading a third party to a suit or proceeding is avoidance of multiplicity of proceedings

and that it is only a necessary or a proper party that can be impleaded in a suit or other proceeding, which means that the court has no jurisdiction

to add a party unless it is a necessary of a proper party. A person is said to be necessary party if he is sought to be joined as a party i. e. in whose

absence no effective judgment, decree or order can be passed, and a person can be said to be a proper party if his presence before the court is

necessary to enable it to effectively and completely adjudicate upon and settle all the questions involved in a suit or a proceeding. It was pointed

out by their Lordships of the Supreme Court in Udit Narain Singh v. Addl. Member Board of Revenue, Bihar, AIR 1963 SC 786, that a

necessary party is one without whom no order can be made effectively and 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 questions involved in the proceeding.

It follows, therefore, that the guiding consideration in the matter of addition of parties is whether the Court can, between the parties as arrayed

before it, effectively and completely adjudicate upon and settle the questions involved in the case. If the question or questions at issue between the

parties can be worked without anyone else being brought in, the stranger should not be added as a party to the litigation. The fact that a stranger

may eventually be affected by the judgment or the execution of the decree or order against the defendant or the respondent, as the case may be, is

not a cogent ground to make him a party. I am fortified in this view by a decision of the Calcutta High Court in Narayan Chandra Garai v. Matri

Bhandar Pvt. Ltd., AIR 1974 Cal 358. In Deputy Commissioner Hardoi in charge Court of Wards Bharawam Estate v. Rama Krishna Narain,

AIR 1953 SC 521 at p. 526, their Lordships of the Supreme Court pointed out that the eventual interest of a party in the fruits of the litigation

cannot be held to be a true test of impleading the parties according to the Code of Civil Procedure.

In Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar, AIR 1964 SC 1746 at p. 1750, their Lordships observed :

The test always must be, is the addition of the party necessary to make adjudication itself effective and enforceable.

In Fateh Raj v. Suraj Roop, AIR 1969 Raj 252. Jagat Narain, J. after referring to a decision in Amon v. Raphael Tuck and Sons Ltd., (1956) 1

All ER 273 said at p. 253 :

In the above decision a note in the Annual Practice 1955 at page 232 is reproduced which runs as follows :

Generally speaking intervention can only be insisted upon in three classes of cases, namely (A) In a representative action where the intervener is

one of a class whom plaintiff claims to represent. The intervener may say, ""deny that plaintiff represents meadd me as a defendant.........."" (B)

Where the proprietary rights of the intervener are directly affected by the proceedings ............... (C) In action claiming the specific performance of

contracts where third persons have an interest in the question of the manner in which the contract should be performed.

Examining the question in the light of the above decisions, Tilak Raj Sharma cannot be deemed to be a proper or a necessary party to the writ

petition. That he is incidentally affected by the aforesaid stay order passed by the court or that he may indirectly be affected by the judgment that

may eventually be passed in the case or that he is interested in the fruits of the litigation cannot be relevant consideration for making him a party to

the petition.

In Mahuva Municipality, Mahuva v. Mehta Kirtikumar Umedchand, AIR 1973 Guj 97, where in a suit (filed by a person interested in the land

proposed to be acquired under the Land Acquisition Act 1894) challenging the validity of the acquisition proceedings started by the Government

the Mahuva Municipality made an application for being impleaded as a party to the suit, the application was refused on the ground that the Mahuva

Municipality was not a necessary party.

For the foregoing reasons, the application cannot be allowed. It is accordingly rejected.