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Judgment
B.L. Yadav, J.—By the present petition under Article 226 of the Constitution, impugned order dt. 12th Apr., 1988 passed by III Additional Distt. Judge Deoria under Order 1, RuIe 10(2) of the Civil P.C., 1908 (for short the Code), allowing the revision and directing the plaintiff, the present petitioner to implead Mr. Mohd. Haneef, the respondent No. 5 as one of the defendants, is sought to be quashed by issuing a writ of certiorari.
It appears that the petitioners filed suit for permanent injunction against one Mainuddin Khan restraining him from interfering with the function of Sri Arvind Pandey as officiating Principal of the institution (vide para 4 of the petition). Petitioner No. 3 was acting Head Master whereas Dr. Nazaruddin Ahmad petitioner No. 2 was alleged Manager of Kisan Laghu Madhyamik Vidyalaya, and Ram Pravesh Prasad was Adhyaksh of Kisan Uchatar Madhyamik Vidyalaya Samiti Banjaria Bazar. It is noticeable that Mainuddin the alleged head master has not been impleaded in the writ petition. As he was asserting himself to be headmaster on the basis of some forged order hence the suit has to be filed. Dr. Mohd. Haneef, the respondent No. 5 made an application under Order 1, Rule 10(2) of Code claiming himself to be the Manager of the institution hence he may be impleaded as a defendant. Petitioners filed objection to that application. The Trial Court rejected the application by order dt. 28-2-1987 (Annexure 4 to the petition). Against that order a revision was filed by the respondent No. 5 which has been allowed by the impugned order, hence present petition has been filed.
Learned counsel for the petitioner urged that revisional Court has no jurisdiction to implead Dr. Mohd. Haneef, the respondent No. 5 as one of the defendants as the petitioners never wanted to implead him as defendant. It is the choice of the plaintiff to implead anybody as defendant and nobody can impose himself against the choice of the plaintiff to be impleaded as party to a suit. Reliance was placed on Sri Mandir Mahadev Prithvinath v. Swami Prakashanand 1981 ALJ 567.
Learned counsel for the respondents urged that Sub-rule 2 of Rule 10 of Order 1 of the Code was quite comprehensive and it confers even discretion on the Court that the Court may at any stage of 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. Dr. Mohd. Haneef, the respondent No. 5 alleged himself to be duly elected Manager. His impleadment was even accepted by plaintiff No. 3 Sri Arvind Pandey , (vide para 4 of the impugned order) that Dr. Mohd. Haneef was Manager and he may be made a party but aforesaid Arbind Pandey has not been made party to the petition as such Dr. Mohd, Haneef was necessary party to the suit in question.
Having heard learned counsel for the parties the point for determination is about '' the scope of Order 1, Rule 10(2) of the Code.
The scope of Order 1, Rule 10 of the Code has been pointed out in a number of decisions of Supreme Court. In Bal Niketan Nursery School Vs. Kesari Prasad, the matter was taken to the Supreme Court from this Court and the view of this Court was not approved. In para 13 at page 1975 it was observed by their Lordships of Supreme Court as follows :
"The scope and effect of Order 1, Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the Court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the Court should set right matters in exercise of its powers under Order 1, Rule 10 and promote the cause of justice."
In Udit Narain Singh v. Addl.. Member, Board of Revenue, Bihar, AIR 1963 SC 786, it was held that it is within the discretion of Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the suit or on application filed at the instance of such proper party.
In Munshi Ram Vs. Narsi Ram and Another, , it was held that Order 1, Rule 1Q(2) of the Code enables the Court to implead a person who appears to be necessary party so as to effectually and completely adjudicate upon and settle all the questions involved in the suit.
In the instant case the respondent No. 5 Dr. Mohd. Haneef made an application for impleadment under Order 1, Rule 10(2) of the Code (Annexure 2 to the petition) and alleged that he was elected as Manager of the institution on 2-11-1986 in the meeting of the General Body. That apart plaintiff No. 2 and defendant No. 2 were in collusion and plaintiff No. 2 was never elected as Adhyaksh, hence respondent No. 5 may be impleaded as one of the defendants in the suit. As he alleged himself to be elected Manager, his interest would be affected in case the plaintiff obtains a decree in the suit by impleading some other persons as defendants. 1 am of the considered opinion that the language of Order 1 Rule 10(2) of the Code has been employed by the Legislature to convey its object by giving a discretion to the Court in every case to implead any person who appears to be necessary party so as to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This power can be exercised by the Court even suo motu. There may be a person who may not be necessary party according to plaintiff, but he may be necessary party according to Court to effectually and completely adjudicate upon the questions involved in the suit. ''In the instant case respondent No. 5 appears to be a party whose presence was necessary as he alleged himself to have been elected as Manager.
As regards the case Mandir Mahadev Prithvi Nath v. Swami Prakashnand 1981 ALJ 567, relied upon by the learned counsel for the petitioner in that case in para 5 at page 569 it was observed as follows :
"There is another aspect of the matter and it is that normally the Court should riot add a person as defendant when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the best judge of his own interest and it should be left to him to choose his opponent from whom he wants relief. If he seeks relief against a particular person, it is not the look-out of the Court to see whether the relief should be claimed against other persons, nor is it duty of the Court to investigate whether the necessary parties have been added or left out."
With profound regards, I may say that it can never be a principle which may be made applicable in every case in view of the wide sweep of the language employed in Order 1, Rule 10(2) of the Code. The provisions of Order 1, Rule 10(2) of the Code clearly empower the Court to implead any person as party suo motu, 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. In case the plaintiff is permitted as a rule to choose, his own opponents and the Court does not interfere on the point, in that event it may be that a collusive decree is obtained against the real owner or interested person without impleading him as a party and when the decree will become final, then at a very late stage the person vitally affected or the real owner may come to know about it. This would lead to defeat the interest of justice which should not be permitted in a Court of law and to avoid these ugly situations the Parliament with considerable ingenuity enacted Order 1, Rule 10(2) of the Code which has been couched in a language having very wide sweep.
The petitioner has prayed for a writ of certiorari under Article 226 of the Constitution. It is well settled by plethora of decisions that a writ of certiorari being a discretionary remedy cannot be issued as a matter of course. It is to be issued only when Court below has acted in excess of jurisdiction, in passing the order or there is violation of principles of natural justice or there is error apparent on the face of the record. In the present case the order for impleadment having been passed under Order 1 (one) Rule 10 (ten)(2) of the Code, where the Court has very comprehensive powers to pass an order for impleadment of a person whose interests are either affected or likely to be affected by the decree or order to be passed on the suit or application of the plaintiff cannot be said to be without jurisdiction.
It is to be borne in mind that while granting the discretionary relief of the writ of certiorari under Article 226 of the Constitution, to a person who invoked the jurisdiction of this Court, the same may not lead to defeat the interest of justice. I am of the considered opinion that granting a relief to the petitioner in this case would certainly lead to defeat the ends of justice. This Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure an unjust advantage or to perpetuate an unjust gain. See Harbans Lal Vs. Jagmohan Saran, M.P. Mittal v. State of Haryana AIR 1984 SC 888 .
Applying a priori and a posteriori reasonings I am of the view that impugned order does not suffer from any error much less an error apparent on the face of the record. By impugned order substantial justice has been done. This order cannot be said to be without jurisdiction, rather it is well within the power of Court under Order 1, Rule 10(2) of the Code. In the premises aforesaid writ petition fails and is dismissed. There shall be no order as to costs.