# Om Prakash Das Chela Revisionist v. Vichar Das Chela & Ors

- **Citation:** (2022) 9 ILRA 1693
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-08
- **Case number:** Criminal Revision No. 52 of 2021
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-das-chela-revisionist-v-vichar-das-chela-ors-49063
- **Pages:** 5

## Headnote

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order VI Rule 17 &
Order
I
Rule
10(2)-Declaratory
suit-
plaintiff-revisionist
filed
a
suit
for
declaration declaring him the Mahant of
one Sant Kabir Math- Relief of permanent
injunction
was
also
claimed
against
defendants from not interfering into the
peaceful possession of the plaintiff over
the property of the Math and also not to
evict
the
plaintiff-An
amendment
application under Order 6 Rule 17 was
1694 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by plaintiff in the year 2020 after the
suit was being contested by defendant no.
3 for striking off her name from the plaintThe
application
was
contested
by
defendant no. 3 by filing her objection
that property in dispute was entered into
the name of her father in whose favour
one Jamuna Das had executed the Will.
Her father had executed a Will in favour of
defendant no. 3 and after the death of her
father, name of defendant no. 3 was
entered in the revenue records- Against
the said order, a revision was preferred
before
the
Additional
Commissioner,
Gorakhpur who dismissed the revisionThe suit filed by the plaintiff relief for
declaration as well as injunction has been
sought, now at a later stage, the plaintiff
cannot get the suit amended to the extent
by deleting name of defendant no. 3 on
the ground that only declaration as a
Mahant has been sought-Hence, The trial
court rightly rejected the application filed
under Order 6 Rule 17 C.P.C. on the
ground that in case the name of defendant
no. 3 is deleted from the array of parties,
it will give cause to the multiplicity of
litigation.(Para 1 to 19)

B. The Sub-rule (2) of Rule 10 of Order 1
C.P.C. clearly provides for the addition of
(i) necessary parties and (ii) proper
parties. ''Necessary parties' are parties,
"who ought to have been joined", i.e.,
parties necessary to the constitution of
suit without whom no decree can be
passed at all. In order that a party may be
considered a necessary party defendant,
two conditions must be satisfied; first,
that there must be a right to some relief
against him in respect of matter involved
in the suit. A necessary party is one
without whom no decree can be made
effectively.(Para 9)
The revision is dismissed. (E-6)

List of Cases cited:

## Text

9 All. Om Prakash Das Chela Vs. Vichar Das Chela & Ors.
1693
accepted this in their cross-examination.
The place of recovery is an open place
accessible to public at large without any
hindrance. Considering the aforesaid facts
no reliance can be placed on this piece of
prosecution evidence.

24. From the analysis of the
prosecution evidence it is clear that the
ocular testimony of sole eye witness
Deepak Kumar (P.W. 2) is not reliable and
trustworthy. No reliance can also be placed
on the evidence of recovery of knife. So
there is no reliable and cogent evidence on
record to hold the accused guilty. The trial
court has failed to appreciate the evidence
in proper manner. The trial court has erred
in placing reliance on the testimony of the
sole eye witness Deepak Kumar (P.W.2)
who is related as well as a chance witness
and whose presence at the spot appeared
doubtful. The learned trial court has also
failed to take into consideration the defence
evidence and also ignored the fact that the
evidence of recovery of knife is not
supported
with
any
forensic
report
confirming that the recovered knife has
been used in the offence. The learned trial
court therefore erred in holding that from
the prosecution evidence the case stands
proved and appellant accused is guilty. The
finding of conviction and sentence as
recorded by the learned trial court is not
sustainable in the eye of law and is liable to
be set-aside and the appeal is liable to be
allowed.

25. The criminal appeal is allowed.
The impugned judgment and order of
conviction dated 28.10.2010 passed by
Additional Sessions Judge, F.T.C. No. 1,
Bagpat in S.T. No. 166 of 2007, Case
Crime No. 16 of 2007, under section 302
IPC, P.S. Baraut, District Bagpat (State Vs.
Kala @ Ankit) is hereby set-aside. The
appellant Kala @ Ankit is acquitted from
the charge of offence punishable under
section 302/34 IPC. He is in jail. He shall
be released forthwith subject to compliance
of Section 437A Cr.P.C. to the satisfaction
of trial court, if not wanted in any other
case.

26. The order be communicated to all
concerned for necessary compliance.

Lower court's record along with
the copy of the judgment be transmitted to
the trial court immediately
----------
(2022) 9 ILRA 1693
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Criminal Revision No. 52 of 2021

Om Prakash Das Chela ....Revisionist
Versus
Vichar Das Chela & Ors. ...Respondents

Counsel for the Revisionist:
Sri Adya Prasad Tewari

Counsel for the Respondents:
Sri Anil Pratap Singh, Sri Kailash Pati, Singh
Yadav, Sri Prabhakar Vardhan

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order VI Rule 17 &
Order
I
Rule
10(2)-Declaratory
suit-
plaintiff-revisionist
filed
a
suit
for
declaration declaring him the Mahant of
one Sant Kabir Math- Relief of permanent
injunction
was
also
claimed
against
defendants from not interfering into the
peaceful possession of the plaintiff over
the property of the Math and also not to
evict
the
plaintiff-An
amendment
application under Order 6 Rule 17 was
1694 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by plaintiff in the year 2020 after the
suit was being contested by defendant no.
3 for striking off her name from the plaintThe
application
was
contested
by
defendant no. 3 by filing her objection
that property in dispute was entered into
the name of her father in whose favour
one Jamuna Das had executed the Will.
Her father had executed a Will in favour of
defendant no. 3 and after the death of her
father, name of defendant no. 3 was
entered in the revenue records- Against
the said order, a revision was preferred
before
the
Additional
Commissioner,
Gorakhpur who dismissed the revisionThe suit filed by the plaintiff relief for
declaration as well as injunction has been
sought, now at a later stage, the plaintiff
cannot get the suit amended to the extent
by deleting name of defendant no. 3 on
the ground that only declaration as a
Mahant has been sought-Hence, The trial
court rightly rejected the application filed
under Order 6 Rule 17 C.P.C. on the
ground that in case the name of defendant
no. 3 is deleted from the array of parties,
it will give cause to the multiplicity of
litigation.(Para 1 to 19)

B. The Sub-rule (2) of Rule 10 of Order 1
C.P.C. clearly provides for the addition of
(i) necessary parties and (ii) proper
parties. ''Necessary parties' are parties,
"who ought to have been joined", i.e.,
parties necessary to the constitution of
suit without whom no decree can be
passed at all. In order that a party may be
considered a necessary party defendant,
two conditions must be satisfied; first,
that there must be a right to some relief
against him in respect of matter involved
in the suit. A necessary party is one
without whom no decree can be made
effectively.(Para 9)
The revision is dismissed. (E-6)

List of Cases cited:

1. Vidur Impex & Traders Pvt. Ltd. & ors.. Vs
Tosh Apartments Pvt. Ltd. and Ors

2. Anil Kumar Singh Vs Shivnath Mishra
3. Kashi Vs Sadasiv

4. Shahsaheb Vs Sadashiv
5. Md.Hussain Gulam Ali Shariffi Vs Municipal
Corp. of Grtr. Bom. & ors..

6. Kasturi Vs Iyyamperumal & ors..

7. Gurmit Singh Bhatia Vs Kiran Kant Robinson
& ors..

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. This revision under Section 115 of
Code of Civil Procedure, 1908 (hereinafter
called as ''C.P.C.') arises out of order dated
08.01.2021 passed by Civil Judge (Senior
Division), Fast Track Court, Gorakhpur in
Original Suit No. 400 of 2017, whereby the
amendment application moved by the
revisionist under Order 6 Rule 17 C.P.C.
being Paper No. 25/K2 for striking out the
name of defendant no. 3 from array of
parties was

2. Facts in nutshell, are that plaintiffrevisionist filed a suit for declaration
declaring him the Mahant of one Sant
Kabir Math. Relief of permanent injunction
was also claimed against defendants from
not interfering into the peaceful possession
of the plaintiff over the property of the
Math and also not to evict the plaintiff. An
amendment application under Order 6 Rule
17 was filed by plaintiff in the year 2020
after the suit was being contested by
defendant no. 3 for striking off her name
from the plaint. The application was
contested by defendant no. 3 by filing her
objection being Paper No. 28Ga and
affidavit 29Ga on the ground that the
property in dispute was entered into the
name of her father Ram Nagina in whose
favour one Jamuna Das had executed the
Will. Ram Nagina had executed a Will in
9 All. Om Prakash Das Chela Vs. Vichar Das Chela & Ors.
1695
favour of defendant no. 3 on 05.01.2002,
and after the death of Ram Nagina, name of
defendant no. 3 was entered in the revenue
records vide order dated 20.03.2007.
Against the said order, a revision was
preferred
before
the
Additional
Commissioner, Gorakhpur who dismissed
the revision on 08.04.2013, against which
writ petition has been filed before this
Court which is pending. According to
defendant no. 3, her name is still recorded
in the revenue records and the order dated
20.03.2007 is still standing in the revenue
records. The court below after the exchange
of pleadings vide order dated 08.01.2022
rejected the application of the plaintiffrevisionist. Hence, the present revision.

3. Sri A.P. Tewari, learned counsel
appearing for the revisionist submitted that
plaintiff is the dominus litis, and is master of
the suit. According to him, defendant no. 3 is
neither a necessary or a proper party and thus
plaintiff sought for amendment for deleting
the name of defendant no. 3. He then
submitted that court below did not consider
the true import of Order 1 Rule 10(2) C.P.C.
and passed the order on non existent and
unfounded grounds.

4. He then contended that as no relief
was sought against defendant no. 3, thus, the
court below was not justified in refusing the
amendment sought. Reliance has been placed
upon decisions of Apex Court in case of
Kasturi vs. Iyyamperumal and Ors1, and
decision rendered in Gurmit Singh Bhatia
vs. Kiran Kant Robinson and others2.

5. I have heard learned counsel for the
revisionist and perused the material on
record.

6. Before adverting to decide the issue
in hand, a cursory glance of Order 1 Rule
10 (2) is necessary for better appreciation
of
the
case,
which
is
extracted
hereasunder:-

"Order 1 Rule 10 (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 effectually and completely to
adjudicate upon and settle all the questions
involved in the suit, be added."

7. From perusal of Sub-rule (2) of
Rule 10 of Order 1, it is clear that the court
may at any stage of proceeding add parties
or delete a party either on the application of
a party or suo moto or by a third party who
desires to be added as a party.

8. In exercise of the power to implead
a person suo moto, the court has to see that
a collusive decree is not obtained against
real owner or interested owner without
impleading him as a party and it does not
become final affecting vitally the rights of
such a person. The power of the court
under this sub-rule is of discretion to be
exercised judicially, keeping in mind that
one of its object is to prevent multiplicity
of suits and conflicts of decisions. Though,
it is not in dispute that plaintiff is dominus
litis, he cannot be compelled to sue a
person against whom he does not claim any
relief, unless it is held keeping in view
pleading and relief claimed therein that a
person sought to be added as a party is a
necessary party and without his presence
1696 INDIAN LAW REPORTS ALLAHABAD SERIES
neither the suit can proceed nor the relief
can be granted. The doctrine of dominus
litis was thus explained by the Apex Court
in case of Mohamed Hussain Gulam Ali
Shariffi vs. Municipal Corporation of
Greater Bombay and Ors.3.

9. The Sub-rule (2) of Rule 10 of
Order 1 C.P.C. clearly provides for the
addition of (i) necessary parties and (ii)
proper parties. ''Necessary parties' are
parties, "who ought to have been joined",
i.e., parties necessary to the constitution of
suit without whom no decree can be passed
at all. In order that a party may be
considered a necessary party defendant,
two conditions must be satisfied; first, that
there must be a right to some relief against
him in respect of matter involved in the
suit. A necessary party is one without
whom no decree can be made effectively.

10. A proper party is one in whose
absence, an effective order can be made but
whose presence is necessary for complete
and final decision on the question involved
in the proceedings. Failure to implead a
necessary party as a party to a proceeding
is fatal. Proper parties are those whose
presence enables the court to adjudicate
more "effectually and completely", as held
in case of Shahsaheb vs. Sadashiv4.

11. In Kashi vs. Sadasiv5, the Court
held that a person may be impleaded as a
defendant to a suit, though, no relief can be
claimed against him, provided his presence
is necessary for a complete and final
decision of the questions involved in the
suit.

12. In Anil Kumar Singh vs. Shivnath
Mishra6, the Apex Court held that object of
Order 1 Rule 10(2) of C.P.C. is to bring on
record all the persons who are parties to the
dispute relating to the subject-matter so that
dispute may be determined in their presence
and at the same time without any protraction,
inconvenience and also to avoid multiplicity of
proceedings. Relevant para 9 of the judgment is
extracted hereasunder:-

"9. Sub-rule (2) of Rule 10 of Order
1 provides that the Court may either upon or
without an application of either party, add any
party whose presence before the Court may be
necessary in order to enable the Court
effectually and completely to adjudicate upon
and settle all questions involved in the suit.
Since the respondent is not a party to the
agreement of sale, it cannot be said that without
his presence the dispute as to specific
performance cannot be determined. Therefore,
he is not a necessary party."

13. In Vidur Impex and Traders Pvt.
Ltd. and Ors. vs. Tosh Apartments Pvt. Ltd.
and Ors7, the Apex Court laid broad principles
which should govern disposal of application for
impleadment. Relevant paras are extracted
hereasunder:-

"41.1. The court can, at any stage of
the proceedings, either on an application made
by the parties or otherwise, direct impleadment
of any person as party, who ought to have been
joined as plaintiff or defendant or whose
presence before the court is necessary for
effective and complete adjudication of the
issues involved in the suit.

41.2. A necessary party is the
person who ought to be joined as party to the
suit and in whose absence an effective decree
cannot be passed by the court.

41.3. A proper party is a person
whose presence would enable the court to
completely,
effectively
and
properly
adjudicate upon all matters and issues,
9 All. Krishna Kumar Gupta Vs. Manoj Kumar Sahu
1697
though he may not be a person in favour of
or against whom a decree is to be made.

41.4. If a person is not found to be
a proper or necessary party, the court does
not have the jurisdiction to order his
impleadment against the wishes of the
plaintiff.

41.5. In a suit for specific
performance,
the
court
can
order
impleadment of a purchaser whose conduct is
above board, and who files application for
being joined as party within reasonable time
of his acquiring knowledge about the pending
litigation.

41.6. However, if the applicant is
guilty of contumacious conduct or is
beneficiary of a clandestine transaction or a
transaction made by the owner of the suit
property in violation of the restraint order
passed by the court or the application is
unduly delayed then the court will be fully
justified
in
declining
the
prayer
for
impleadment."

14. Admittedly, defendant no. 3 is
claiming right over the land for which relief
for permanent injunction has been sought by
plaintiff, and her name has been mutated on
revenue records on the basis of the Will
executed by her father in the year 2002 and is
continuing over the possession since then.
The defendant no. 3 is a necessary party in
view of fact that her name has already been
recorded in the revenue records on the basis
of Will and plaintiff had sought relief of
permanent injunction against defendants.

15. Though, in the suit filed by the
plaintiff relief for declaration as well as
injunction has been sought, now at a later
stage, the plaintiff cannot get the suit amended
to the extent by deleting name of defendant no.
3 on the ground that only declaration as a
Mahant has been sought.

16. The trial court rightly rejected the
application filed under Order 6 Rule 17 C.P.C.
on the ground that in case the name of
defendant no. 3 is deleted from the array of
parties, it will give cause to the multiplicity of
litigation. In Anil Kumar Singh (supra), the
Hon'ble Apex Court had rightly held that all
parties to dispute relating to a subject-matter
should be brought on record and dispute be
determined in their presence so as to avoid
multiplicity of proceedings.

17. It is not in dispute that name of
defendant no. 3 is recorded in the revenue
records over the property in dispute for which
the injunction has been sought by the plaintiff,
while the first relief claimed is for declaring
the plaintiff as Mahant of Sant Kabir Math. In
case the name of defendant no. 3 is deleted it
would lead to multiplicity of litigation.

18.

Considering
the
facts
and
circumstances of the case, this Court finds that
no interference is required in the order dated
08.01.2021 passed by court below rejecting
the application for amendment.

19. The revision fails and is hereby
dismissed.
----------
(2022) 9 ILRA 1697
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 144 of 2018

Krishna Kumar Gupta ...Revisionist
Versus
Manoj Kumar Sahu ...Opposite Parties