Manohar Lal vs Mohan Lal

Sindhu Sharma, J

This petition under Article 227 of the Constitution of India has been preferred seeking quashing of order dated 27.01.2020 passed by the Court of learned Sub-Judge (CJM), Udhampur in a suit titled ‘Mohan Lal Vs. Manohar Lal’, whereby the Court has arrayed Arun Sharma as party defendant on its own by considering him to be necessary party.

A civil original suit for declaration had been filed by Mohan Lal (respondent) declaring Arun Sharma as legitimate son of the plaintiff, who is in the custody of the defendant/petitioner herein for the last 17 years, with the prayer for permanent prohibitory injunction restraining the petitioner/ defendant not to change the parentage of the minor Arun Sharma and to hand over the custody of minor to the plaintiff/respondent. The petitioner (defendant therein) appeared in the suit and filed written statement opposing the claim of the plaintiff/respondent on the ground that the suit is time-barred, and as per the admission of the plaintiff, the respondent had himself given his son in adoption to the plaintiff and his wife, who is the aunt of minor Arun Sharma.

On the pleadings of the parties, the Trial Court framed as many as nine issues. The petitioner filed an application on 12.05.2017 for shifting the onus of Issue No. 1 i.e., whether the suit is time-barred on the respondent/plaintiff and the same was pending for arguments. On 27.01.2020, the learned Trial Court, instead of hearing the arguments on the application dated 12.05.2017, without giving any opportunity to the petitioner, impleaded Arun Sharma as party defendant in the suit holding that he is a necessary party.

The petitioner is aggrieved of the order dated 27.01.2020, as the same has been passed without giving any reason or finding that arraying Arun Sharma as a party is a necessary to enable the court to effectively and completely adjudicate upon and settle all the questions in the suit, ignoring the fact that no relief was being claimed against Arun Sharma.

The respondent on the other hand has opposed this petition on the ground that Arun Sharma being necessary party has been rightly arrayed as a defendant by the Trial Court.

Heard learned counsel for the parties.

The issue of impleadment of party has to be decided on touchstone of Order-1 Rule-10 CPC which provides that, a necessary or a proper party may be added, however, Sub-Rule (2) of Rule-10 CPC gives a wide discretion to the Court to implead necessary or proper parties but judicial discretion in these cases has to be exercised keeping in view the facts and circumstances of a particular case. This finding is condition precedent of exercise of jurisdiction by the Court for addition of the party under the provisions of Order-1 Rule-10(2) of the CPC, Order-1 Rule-10(2) of C.P.C. reads as under: -

“(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 effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added."

The Trial Court in exercise of its discretion and arrayed Arun Kumar as party but while doing so did not give any opportunity to the parties to address the issue. The contention of the petitioner is without considering this issue or giving a finding on the same, the impugned order is passed which is illegal and erroneous and requires to be set aside.

It is well settled law that it is open to the Court to add any such person as necessary party in the suit to enable the Court to effectively adjudicate the question involved in the suit, but for exercise of power under this rule, the Court has to come to a finding that the party is a necessary or proper party.

It is averred in the plaint itself that Arun Sharma was 3 years and 9 months old when his custody was given to the petitioner. Thus, Arun Sharma would not be able to throw any light upon the facts of the case for adjudication of the same. It is also stated that Arun Sharma is neither a proper nor a necessary party as no relief is sought or claimed against him in the plaint, as such, he is not required for the adjudication of the suit. It is well-settled that the court at any time either suo moto or on the application of any party can add a person as party, if the court thinks fit in the facts and circumstances of the case, but the same can only be done where the court is satisfied that without adding the person as a necessary party, the court cannot effectively and completely adjudicate upon the matter and settle issues involved in the case.

The Civil original suit for declaration was with regard to declaring Arun Sharma as a legitimate son of the plaintiff, who is under the custody of the respondent for the last 17 years. Prayer in the suit for permanent prohibitory injunction restraining the petitioner/defendant not to change the parentage of the minor Arun Sharma also to hand over the custody of minor to the plaintiff/respondent.

In the present case, there is no relief sought against the newly arrayed defendant rather it is adoption which is a subject matter of challenge and it is a plain averment of the party that the defendant was only three years of age at that time, he would not be in a position to give any statement or evidence necessary for adjudication of the suit. This apart, no relief has been sought against him.

The Trial Court in cursory manner has passed the impugned order without considering the necessity of arraying Arun Sharma as party. It is well settled that only that person may be added as party, whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all questions to the suit. The impleadment of Arun Sharma is not necessary for adjudication of the suit, as right of relief against him is sought and secondly his presence is not necessary to adjudicate the suit.

In Kasturi vs. Iyyamperumal & ors. reported as (2005) 6 SCC 733, the Hon’ble Apex Court has held as under:-

“6. Let us therefore confine ourselves to the provision of Order 1 Rule 10 sub-rule (2) of CPC which has already been quoted hereinabove. From a bare perusal of sub-rule (2) of Order 1 Rule 10 of the CPC, we find that power has been conferred on the Court to strike out the name of any party improperly joined whether as plaintiff or defendant and also when the name of any person ought to have been joined as plaintiff or defendant or in a case where a person 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 the present case, since we are not concerned with striking out the name of any plaintiff or defendant who has been improperly joined in the suit, we will therefore only consider whether the second part of sub-rule(2) Order 1 Rule 10 of the CPC empowers the Court to add a person who ought to have been joined 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 our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.”

It is, thus, established that in order to add/implead a person as a party in a suit, his presence should be necessary in order to enable the Court to effectively and completely adjudicate and settle all the questions involved in the suit. The Court is empowered to join a person whose presence is necessary for prescribed purpose of adjudication and settle all questions involved in the suit.

No doubt, the Trial Court has exercised its discretion but the same must guided by principles of law. In Ramji Dayawala & sons (P) Ltd. vs Invest Import. reported as 1981 (1) SCC 80 , the Hon’ble Apex Court has held as under:-

“When applied to a court 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.”

The impugned order is bad and erroneous and has caused injustice to the petitioner and is required to be set aside. The Hon’ble Supreme Court in Koyilerian Janaki & ors. Vs. Rent Controller (Munsiff) Cannanore & ors. reported as 2009(9) SCC 406 has been pleased to hold that:-

“The power under Article 227 is exercisable where it is found by the High Court that due to certain grave error an injustice has been caused to a party. For this reason also, the judgment of the High Court deserves to be set aside.”

In view of the aforesaid discussion, this petition is allowed. The order impugned is without jurisdiction being against law and the impugned order dated 27.01.2020 passed by the learned Sub-Judge (CJM), Udhampur is quashed.