IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11834 of 2011
Sukhdeo Paswan
Versus
The State Of Bihar Through Collector, Vaishali, Hajipur. & Ors.
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ORDER
00. 13.10.2011. I have heard the learned counsel, Mr. Mahesh Narayan
Parvat on behalf of the petitioner and Mr. Surendra Kishore
Thakur on behalf of the respondent No.7 to 10 and Mr. Md. S.
Siddique, A.C. to A.A.G.IX on behalf of the original defendant-
respondent.
(2) The plaintiff-petitioner filed the present application
under Article 227 of the Constitution of India challenging the
order dated 26.05.2011 as contained in Annexure 3 passed by
Civil Judge Ist (Sr. Division) Hajipur in Title Suit No.263 of 2003
whereby the learned Court below allowed the application filed by
the interveners-respondents 3rd set under Order 1 Rule 10 of the
Code of Civil Procedure and impleaded them as defendants in
the suit.
(3) The learned counsel for the petitioner submitted
that the plaintiff cannot force to fight litigation against a person
against whom he has not claimed any relief. The interveners-
respondent are neither necessary party nor proper party in the
present suit but the learned Court below has allowed their
application and, thereby exercised the jurisdiction arbitrarily.
According to the learned counsel, the said respondents are not
claiming title or interest in the suit property rather they are
claiming their easementary right and, therefore, their right
cannot be decided in the present suit.
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(4) On the other hand, the learned counsel for the
intervener-respondent submitted that the learned Court below
has exercised the jurisdiction judiciously and the learned Court
below found that the interveners are proper party and,
therefore, allowed their application. In such circumstances in
exercise of supervisory jurisdiction, this Court will refrain from
interfering with the impugned order which has been passed in
exercise of judicial discretion.
(5) It appears that the plaintiff-petitioner with others
filed Title Suit No.263 of 2003 praying for declaration of their
title over Schedule I property alleging that the said property is
part of old plot No.297 and 925 which are in possession of the
plaintiffs and the same has wrongly been recorded in the
revisional record of right in the name of defendants, i.e.,
respondent 1st set. The plaintiff further prayed for restraining
the defendants by issuance of permanent injunction from
interfering in peaceful possession of plaintiff and from making
any construction over the disputed land. The interveners-
respondent 3rd set filed the application under Order 1 Rule 10 (2)
on 15.03.2010 praying for their addition as defendant on the
ground that their houses are adjacent east of Municipal road and
the plaintiff is raising claim over the road. It is stated that the
plaintiff has filed the suit with an intention to close the road.
From perusal of the impugned order, it appears that the learned
Court below found that the intervener had only way which is
being used by them for going to their house. The learned Court
below also observed that they are not claiming title on the
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disputed land of the plaintiff. Because, that is the way which is
being used by the intervener, they are necessary party.
(6) Admittedly, in this case, the plaintiff filed the suit
for declaration as stated above. The plaintiff has prayed for
declaration of title and correction of record of right. According to
the Court below also, the interveners are not claiming any title
on the suit property. In absence of the said interveners, it
cannot be said that the Court will be unable to decide the suit or
grant the relief in favour of the plaintiff. The claim of the
intervener is outside the purview of the plaintiff’s case. They are
claiming easementary right. Whether they have got
easementary right or not is a separate issue. Without their
being any evidence on the basis of application only, the Court
below found that they are using the road since before and found
that they have got easementary right. It is also admitted that
the suit property is recorded in the survey record in the name of
Municipality.
(7) In such view of the matter, it cannot be said that
interveners are either necessary party or proper party in the
present suit. Only because they are claiming easementary right
as a matter of right, they cannot be added as a party.
(8) It is well settled principle of law that plaintiff is
dominus litis. Order 1 Rule 10 (2) C.P.C., does not speak about
the right of a non-party to be impleaded as a party, but it speaks
about the judicial discretion of the Court to strike out or to add
parties at any stage of a proceeding. The discretion under the
said Rule can be exercised either suo motu or on the application
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of the plaintiff or the defendant or an application of a person
who is not a party to the suit. In exercising of its judicial
discretion, the Court will, of course, act according to reason and
fare play and not according to the whims and caprice. This
“discretion” means sound discretion guided by law, it must be
governed by rule and not by humour, it must not be arbitrary,
vague and fanciful but legal and regular.
(9) Here, in the present case, the plaintiff is opposing to
the adding of the interveners, therefore, the Court below should
have considered the fact that the plaintiff cannot be compelled to
fight with a person against whom he is not praying any relief.
The Court below should have found that as to whether in
absence of the interveners, the plaintiff was entitled for the relief
claimed by him or not. If it is found that plaintiff cannot be
granted the relief which he claimed in absence of the intervener
in such circumstances, the intervener is necessary party.
(10) In 2010 (7) Supreme Court cases 417
Mumbai International Airport Pvt. Ltd. Vs. Regency
Convention Centre & Hotels (P) Ltd. and Ors, the Apex
Court has held at paragraph 24.3 as follows :
“24.3 – If a person makes an application for
being impleaded contending that he is a necessary party,
and if the Court finds that he is a necessary party, it can
implead him. If the plaintiff opposes such impleadment,
then instead of impleading such a party, who is found to
be a necessary party, the Court may proceed to dismiss
the suit by holding that the applicant was a necessary
party and in his absence the plaintiff was not entitled to
any relief in the suit.”
(11) As has been stated above, the claim of the
intervener cannot be enquired in the present suit. There is no
finding recorded by the Court below that in absence of the
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interveners, the relief claimed by the plaintiff cannot be granted
in his favour. On the other hand, the nature of claim stated by
the intervener appears to be not entertainable and is not related
to the claim of the plaintiff.
(12) It has been held by the Apex Court in the above
decision that a “necessary party” is a person who ought to have
been joined as a party and in whose absence no effective decree
could be passed at all by the Court. If a “necessary party” is not
impleaded, the suit itself is liable to be dismissed. A “proper
party” is a party who though not a necessary party is a person
whose presence would enable the Court to completely,
effectively and adequately adjudicate upon all matters in dispute
in the suit, though he need not be a person in favour of or
against whom the decree is to be made. If person is neither
proper nor necessary party, the Court has no jurisdiction to
implead him, against the wishes of the plaintiff.
(13) In view of the facts and circumstances of the case,
it appears that the learned Court below without considering
these aspects of the matter on the mere application filed by the
interveners allowed the same. In my opinion, therefore, the
order passed by the Court below is unsustainable in the eye of
law. Accordingly, this writ application is allowed and the
impugned order is set aside. The application filed by the
interveners-respondents is rejected.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 13thday of October, 2011
Sanjeev/A.F.R.