M. Govardhana Naidu vs Maddina Venkata Subbaiah & Ors.

The petitioner herein, who is a third party to the suit, filed an interlocutory application, I.A.No.47 of 2026 in O.S.No.34 of 2018 on the file of the Civil Judge (Junior Division), Railway Kodur, under Order 1 Rule 10(2) read with Section 151 of C.P.C., to add him as a party, as he is proper and necessary party to the suit. The said application was dismissed by the learned trial Court Judge, vide order dated 27.04.2026. Assailing the same, the present Civil Revision Petition is filed under Article 227 of the Constitution of India.

The 1^st respondent herein, who is the plaintiff in the suit, filed suit to declare the easementary right of the plaintiff in item No.I and II of the suit schedule properties all along “ABCD” and “DEFG” pathway passage shown in plaint plan for catering the transport need from the adjacent lands of the plaintiff through vehicles, carts to reach the lands of the plaintiff and to move his agricultural produces and for the consequential relief of permanent injunction in favour of the plaintiff restraining defendants 2 and 3 and their men from any way interfering with the peaceful possession and enjoyment of the plaintiff over the Item No.I and II of the suit schedule properties.

It is the contention of the petitioner/proposed party, that the deceased 1^st defendant has executed an unregistered Will dated 28.01.2021, bequeathing the properties that derived through the gift deed, and after the death of the deceased 1^st defendant, the petitioner/proposed party has become the owner of the property, as such, he is the proper and necessary party and in the absence of the petitioner/proposed party, the suit cannot be decided effectively.

The plaintiff filed a counter affidavit to the implead application, asserting that after death of the sole defendant, the children of the deceased were brought on record as defendants 2 and 3 as the legal heirs of the deceased 1^st defendant and further stated that the signature on the unregistered Will dated 28.01.2021 is forged and the defendants 2 and 3 are settled at U.S.A., who are only proper and necessary parties to the suit and the present application is filed to grab the suit schedule properties of the plaintiff and the legal heirs of the deceased 1^st defendant have not stated that the deceased 1^st defendant executed a Will in favour of the petitioner/proposed party and taking advantage of the surname, and further states that it is illogical to bequeath the properties other than a family member of the deceased defendant, there is no such relation in between the petitioner/proposed party and the deceased defendant and the plaintiff characterizes the Will as concocted, suspicious and invalid due to its lack of registration, thereby refuting the claim that the petitioner is a necessary party to the suit.

On these contentions raised by the proposed petitioner and the plaintiff, the trial Court has dismissed the I.A.No.47 of 2026 filed under Order 1 Rule 10(2) read with Section 151 C.P.C., relying on the judgment of the Supreme Court in Sudhamayee Pattnaik and others Vs. Bibhu Prasad Sahoo and others reported in AIR 2022 SC 4304. The Apex Court held that nobody can be permitted to be impleaded as defendant against the wish of the plaintiff and such non-impleadment shall be at the risk of the plaintiff and the plaintiff is the dominus litis and the said order is challenged before this Court.

Learned counsel for the petitioner herein would submit that the trial Court has erred in dismissing the application relying on the judgement of the Apex Court, and the contentions that raised by the 1^st respondent/plaintiff have to be decided in the suit, primarily the Court has to look into whether the petitioner/proposed party is a proper and necessary party and, in the absence of petitioner/proposed party, the suit can be decided effectively. And the plaintiff is admitted that he has executed a gift deed in favour of the deceased/defendant and the said properties were bequeathed to the petitioner/proposed party through the unregistered Will dated 28.01.2021, both the plaintiff and the proposed party are claiming same property and in the absence of the petitioner/proposed party, the Court cannot decide the suit effectively, hence it is agreed that the petitioner/proposed party is proper and necessary party and relied on the judgment of the Supreme Court in M/s. J.N.Real Estate Vs. Shailendra Pradhan and others reported in 2025 SCC OnLine SC 1015, the Supreme Court has dealt in the following:

Learned counsel for the 1^st respondent/plaintiff has made his submissions reiterating the counter contents and relied on the judgment of the Apex Court, which was relied by the learned trial Court, i.e., Sudhamayee Pattnaik and others Vs. Bibhu Prasad Sahoo and others reported in AIR 2022 SC 4304.

It is settled law that a necessary party is a person, in whose absence no effective decree can be passed, whereas a proper party is one, who, though not a necessary party, is a person whose presence would enable the Court to effectively and adequately adjudicate upon the issue. The rule dominus litis is discussed in the case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417, and explained the scope of Order I Rule 10(2) of the C.P.C. While holding so, it was observed that although the general rule is that the plaintiff, being dominus litis, may choose the persons against whom he wishes to litigate and seek relief, yet this rule of impleadment would be subject to the provisions of Order I Rule 10(2) C.P.C., wherein Courts are vested with the discretion to strike out or add parties to a suit depending on whether their impleadment is deemed necessary or proper. It is settled proposition of law that Order I Rule 10(2) C.P.C. did not pertain to the „right‟ of a non-party to be impleaded as a party, but deals with the „judicial discretion‟ of the Court to strike out or add parties at any stage of the proceeding. In exercising this judicial discretion, Courts must act according to reason and fair play and not according to whims and caprice.

Admittedly the present suit is for declaration of easementary right of the plaintiff and consequential injunction of the plaint schedule property and the petitioner/proposed party claiming the same property basing upon the Will dated 28.01.2021 that it is executed by the deceased 1^st defendant, the issue pertains in between the plaintiff and the petitioner/proposed party. Where the question of cancellation of gift deed is permissible or not, or the Will dated 28.01.2021 is genuine or not would adequately adjudicate upon all these issues to be decided in the suit, if the Court finds that proposed party to be a proper party, the Court may add as a defendant.

In light of the legal principles established by the Apex Court, the petitioner/proposed party is a proper party to the suit. Dismissing the Civil Revision Petition would likely result in the petitioner initiating a separate declaratory suit based on the Will dated 28.01.2021, thereby, it leads to multiplicity of proceedings. As the petitioner is claiming the same property, which was gifted by the plaintiff in favour of the deceased 1^st defendant, who, in turn, executed the Will in favour of the petitioner/proposed party, therefore, he is a proper party to the suit. The judgment in J.N.Real Estate (referred supra) relied on by the learned counsel for the petitioner/proposed party is squarely applicable to the present facts of the case, and the petitioner is held to be a proper party to the suit.

Accordingly, the Civil Revision Petition is allowed and the order dated 27.04.2026 passed in I.A.No.47 of 2026 in O.S.No.34 of 2018 on the file of the Civil Judge (Junior Division), Railway Kodur, is hereby set aside and consequently, the said I.A.No.47 of 2026 is allowed and the trial Court is directed to implead the proposed party as party defendant to the suit. There shall be no order as to costs.

As a sequel thereto, Interlocutory Applications pending, if any, shall stand closed.