Smt. Geeta Sharma vs State of M.P.

A.S. Tripathi, J.

The trial Court by its order dated 14.9.1995 allowed the application of the non-petitioner No. 2 for impleading him as defendant in the suit in accordance with the provisions of O.I, R. 10 C. P; C.

After hearing learned counsel for the parties and on perusal of the record, it appears that the petitioner/plaintiff filed a civil suit No. 19-A/94 in the Court of Civil Judge Class, 1 Shivpuri for declaration that constructions and boundary walls of the plaintiff are situate within plots No. 1126 and 1127/2 and do not fall in plots No. 1093 and 1099. During the proceedings of the suit, before framing of the issues, non-petitioner No. 2 as an intervener moved an application under Order 1 Rule 10 C.P.C. for impleading him as defendant on the ground that he has title and possession over plot No. 1098 and any decree passed in the suit shall adversely affect his claim for title and possession over plot No. 1098 situate adjacent to plot No. 1126 and 1127.

The trial Court, after hearing both the parties and the objection raised by the plaintiff came to the conclusion that for complete adjudication of the matter and for passing effective decree, it was necessary to have measurement of Plots No. 1126 and 1127 in relation to Survey No. 1098 and 1099. As such, measurement of plot No. 1098 and 1099 were equally necessary for passing any decree in the suit, and therefore, when the third party claims possession and title over plot No. 1098, he was the proper party in the suit and any measurement done on the spot has to be looked after, supervised and controlled taking in view the interest of third party as well.

With this observation, the trial Court allowed the application under Order 1 Rule 10 C.P.C. and directed that non-petitioner No. 2 be impleaded as defendant in the suit, and consequential amendments in the plaint be made.

Against this order, learned counsel for the petitioner/plaintiff raised a plea that declaration was sought over plot Nos. 1126 and 1127/2 only, and therefore, third party, i. e. non-petitioner No. 2 was neither necessary, nor proper party in the suit to be impleaded, and the order passed by the trial Court was against the established provisions of law on that point. He referred to the case of Ramesh Hiranand Kundanmal v. Municipal Corp. Bombay, 1992 (1) MPWN 159 (SC). The Supreme Court in that case had reiterated the established law that under O. 1, R. 10 C.P.C. it is the duty of the Court to ascertain the interest of the third party while allowing impleadment or refusing to implead third party. Only after, ascertaining as to whether presence of such a person was necessary for settling the question completely and effectively, and when the person is a necessary or proper party for complete adjudication of the case, he must be impleaded in the suit. If the Court finds that the person claims to be impleaded, is neither necessary nor proper party, such impleadment should not be permitted. Reliance was further placed on the other cases of Sitaram v. Shankarlal, 1985 MPWN 482, Ratan Soap Factory v. Ranjeet Soap Factory, 1979 (II) MPWN 13, Babulal v. Shankarlal, 1976 MPWN 37, Pandharinath v. Sudamabai, 1979 (I) MPWN 239, Devchand v. Mangilal, 1983 MPWN 32, and Murti Shri Parasnathji v. Radheshyam 1980 (I) MPWN 132. The law established on this point has been reiterated by the Supreme Court in the case of Ramesh Hiranand Kundanmal.

The provisions of Order 1 Rule 10 sub. rule (2) C.P.C. are very clear, which cast a duty on the Court to ascertain as to who is the necessary or proper party to be impleaded in the suit for complete adjudication of the matter between the parties. If the Court finds that impleadment of a particular person was proper for ascertaining the claim put by the plaintiff, to adjudicate the matter finally it is the duty of the Court to implead such a person in such a suit. It is not material that what relief has been sought and against which person. No doubt, the plaintiff has a right to implead person she chooses against whom relief is claimed, but when the Court finds that by granting such relief interest of third person may by adversely affected, the Court may call upon such a person to be impleaded in the suit, so that at the time of granting relief to the plaintiff, interest of third person be also protected. In such a situation, provisions of Order 1 Rule 10 sub-rule (2) C.P.C. are to be invoked, which is the duty of the Court itself. The right conferred on the plaintiff under O. 1, R. 10 sub-rule (2) C.P.C. is subject to the discretion of the Court exercised in sub rule (2) of Rule 10 of order I C.P.C. Therefore, ultimately it is the duty of the Court, which is paramount, to ascertain, as to whether the person was a proper party for complete and effective adjudication of the suit.

Facts of each case differ. So far as present case is concerned, two relief''s have been claimed, one is that the construction in question is situate within the Survey No. 1126 and 1127/2 and the second relief is that a declaration be given that this construction do not fall within the boundaries of Survey No. 1098. The third person, i. e. non-petitioner No. 2 was claiming interest over Survey No. 1098, and therefore, whenever such type of measurement has to be made, interest claimed by the non-petitioner No. 2 in Plot No. 1098 was certainly come into question and any adverse effect being contemplated in the adjudication of the suit may not affect interest of the third party and his interest has to be protected. That is what has been done by the trial Court as plot No. 1098 is equally involved and for ascertaining actual spot and for granting possession and injunction against a person who claims title and possession or any interest over Plot No. 1098 has an interest in the proceedings of the suit, and therefore, he was proper party to be impleaded so that the matter be finally adjudicated and interest of third person be also protected in relation of relief''s claimed by the plaintiff.

Learned counsel for the non-petitioner No. 2 has placed reliance of the case of Mansharam v. Kailashnarain, 1995 (11) MPWN 58. This Court examined this point, and held that whenever interest of any other third person would be adversely affected ultimately at the time of passing of the decree, third party becomes necessary party and must be impleaded.

Other case of Subhash Chandra v. Shriram Gupta, 1986 JLJ 484 has been placed before this Court. The principle of dominus litis was examined in this case, and this Court found that in view of the facts of the case, principle of dominus litis was not applicable, as the person seeking to be impleaded as defendant was a proper party and his interest might have been affected in passing the decree without hearing him. Therefore, whenever a question arises as to who is proper party, his interest has to be examined before passing any order on the application under 0.1 Rule 10 C. P. C.

Lastly the case of Kanchhedilal v. State of M.P. 1977 MPWN 74 was relied upon in which this question was again examined and this Court held, as per Hon. Shri J. S. Verma J. (as he then was) that when the trial Court comes to the conclusion that for complete decision, third party was necessary to be impleaded and when the trial Court decides to implead, the appellate Court, shall not interfere in such a manner as that would be an interference with the proper discretion exercised by the trial Court under the provisions of sub-rule (2) of Order I Rule 10C.P.C. If the third party claims to have interest in the litigation and his right might be adversely affected over a particular property, he is deemed to be a proper party in such a litigation, and once the trial Court allowed to implead him as defendant the same could not be questioned, in view of the fact that it is for the trial Court to control the proceedings and to pass an effective and executable decree.

In this particular case, as observed earlier, the question of measurement of Survey Nos. 1126 and 1127, 1098 and 1099 are mandatory and only after such measurement relief prayed for by the plaintiff could be given to him. When third party claims interest in Survey No. 1098, he has therefore, definite interest in the measurement of these plots. Once this fact comes on record that the person is interested in the proceedings of the suit, in which interest of such person is likely to be adversely affected, he is definitely a proper party and once the discretion is exercised by the trial Court allowing him to be impleaded as defendant, the same could not be questioned in appeal.

In any view of the matter, I do not find that the trial Court had acted beyond the scope of Order 1 Rule 10 sub-section (2) C.P.C. and the order impugned is fully justified. This revision, therefore, has no merit and is dismissed.