# Paras Nath & Anr v. Additional District Judge, Court No. 2, Sultanpur & Ors - **Citation:** (2016) 3 ILRA 381 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-15 - **Bench:** Anil Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-anr-v-additional-district-judge-court-no-2-sultanpur-ors-43538 - **Pages:** 8 ## Headnote Civil Procedure Code - Order I Rule 10(2) - Impleadment of parties - Necessary vs. proper parties - Plaintiff as dominus litis - Discretion of court to add parties for effective adjudication and avoidance of multiplicity - Mere interest insufficient without direct enforceable right or legal compulsion - Rejection of application upheld. Facts - Opposite Party filed Regular Suit for permanent injunction against Gram Panchayat over land (khasra no. 278, etc.) with, claiming uninterrupted possession for over 100 years - Petitioners sought 382 INDIAN LAW REPORTS ALLAHABAD SERIES impleadment under Order I Rule 10 CPC - trial court allowed impleadment application, but revisional court rejected this application citing plaintiff's choice of defendants - Writ Petition preferred. Issue - Whether petitioners are necessary/proper parties whose presence is required for complete adjudication of the injunction suit under Order I Rule 10(2) CPC Held - Writ petition dismissed - Order I Rule 10(2) empowers courts to add parties at any stage if necessary for effective decree or to settle all questions, distinguishing necessary parties (absence prevents effective relief) from proper parties - Plaintiff (dominus litis) cannot be forced to implead absent direct interest; mere suit interest inadequate - No illegality in rejection. IN RESULT - Petition stands Dismissed. List of Cases cited: ## Text 3 All. Paras Nath & Anr. Vs Additional District Judge, Court No. 2, Sultanpur & Ors. 381 has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra). 14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows: "Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him..... If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio." 10. Thus, this is not a case, in which deemed sanction can be inferred. The learned lower court has rightly rejected the application of the revisionist under section 156(3) Cr.P.C. 11. In view of what has been indicated herein above, the criminal revision lacks merit and is accordingly dismissed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 15.03.2016 BEFORE THE HON'BLE ANIL KUMAR, J. Misc. Single No. - 2379 of 2016 Paras Nath & Anr. ...Petitioners Versus Additional District Judge, Court No. 2, Sultanpur & Ors. ...Respondents Counsel for the Petitioners: Brijesh Yadav "Vijay" Counsel for Respondents:- C.S.C, Azad Khan Civil Procedure Code - Order I Rule 10(2) - Impleadment of parties - Necessary vs. proper parties - Plaintiff as dominus litis - Discretion of court to add parties for effective adjudication and avoidance of multiplicity - Mere interest insufficient without direct enforceable right or legal compulsion - Rejection of application upheld. Facts - Opposite Party filed Regular Suit for permanent injunction against Gram Panchayat over land (khasra no. 278, etc.) with, claiming uninterrupted possession for over 100 years - Petitioners sought 382 INDIAN LAW REPORTS ALLAHABAD SERIES impleadment under Order I Rule 10 CPC - trial court allowed impleadment application, but revisional court rejected this application citing plaintiff's choice of defendants - Writ Petition preferred. Issue - Whether petitioners are necessary/proper parties whose presence is required for complete adjudication of the injunction suit under Order I Rule 10(2) CPC Held - Writ petition dismissed - Order I Rule 10(2) empowers courts to add parties at any stage if necessary for effective decree or to settle all questions, distinguishing necessary parties (absence prevents effective relief) from proper parties - Plaintiff (dominus litis) cannot be forced to implead absent direct interest; mere suit interest inadequate - No illegality in rejection. IN RESULT - Petition stands Dismissed. List of Cases cited: 1. Dr. Shyam Chandra Srivastava vs. Estate of Padmasri Smt. Savitri Sahni 2010 (28) LCD 799. 2. Savitri Devi Vs. District Judge, Gorakhpur, 1999 (2) SCC 577 3. Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18 4. Ramesh Hirachand Kundanmal Vs. Municipal Corpn. Of Greater Bombay, 1992 (2) SCC 524 5. Vidur Impex and traders Private Limited and others Vs. Tosh Apartments Private Limited and others, 2012 (8) SCC 384 6. Vinod Seth Vs. Devinder Bajaj, 2010 (8) SCC 1 7. Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, 2004 (1) SCC 191 (Delivered by Hon'ble Anil Kumar, J.) 1. Heard Shri Brijesh Yadav "Vijay", learned counsel for the petitioners, learned Standing Counsel appearing for the opposite party no. 2, Shri Azad Khan, learned counsel for the opposite party no.3 and perused the record. 2. By means of the present writ petition, the petitioners have challenged the impugned order dated 30.11.2015 passed by Additional District Judge, Court No.2, Sultanpur by which the petitioners' application for impleadment in Regular Suit No.192/97 has been rejected. 3. Facts in brief of the present case are that opposite party no.4/Daya Ram filed a suit for permanent injunction in respect of the property mentioned in paragraph 3 of the plaint, which reads as under:- "यह कक गाटा सूं १५ । रकबा ०. २७८ यधकप राजजर् शअिलेखो में बूंजर के खाते में दजव है मगर उसने र्ादे के दरख्तान अज ककजम आम ५ मुहुआ ६ जामुन ७ ऩीम ५ बबूि २ बाूंसकोठ ३ बैर २ आछ़ी ५ कौि १० पेड़ मूंजूद है कजसने िाभग १५ साल से िेकर सैकड़ों साि के दरख्तान कजथत है कर्कदत रहे कक कर्र्ाकदत दरख्तान में कुछ पेड़ परपाजा र्ाद़ी कुछ आज र्ाद़ी कुछ कपता र्ाद़ी र् कुछ पेड़ जर्यूं र्ाद के िगाएूं र्सैये परख्ये है। इन दरख्तान के िि र् िकड़़ी का इजतेमाि तथा बॉजकोठ में बास का इजतेमाि वतौर माकिक र्ाद़ी परपाजा आजा 3 All. Paras Nath & Anr. Vs Additional District Judge, Court No. 2, Sultanpur & Ors. 383 कपता र् अब र्ाद़ी जर्यूं करते चिे आ रहे है इन दरख्तान पर क्त कायम दरख्तान से याऩी जकर् के बहुत पहिे से र्ाद़ी र् उसके पूर्वजो काह़ी कब़् र् दखि उपयोग र् उपभोग बराबर कबना ककस रोकटोक के चला‌आ‌रहा‌है ।" 4. The prayer made by the petitioners reads as under : " "कडग्ऱी हुकुम इमतनाई क्र्ाम़ी बहक वादी कखिाि प्रकतर्ाद़ी गण इस अशय की सकदर करमाई जार्े कक प्रकतर्ाद़ी गण को हमेशा हमेशा के किए मनाकर कदया जार्े की र्ह कनणवई दख्तान र् बॉसकोठ के र्ाद़ी के शाूंकतपूणव कबज़ा र् दखि में कोई हजतछेप न करे और दरख्तान र् बॉसकोठ कनणवई को न काटे और न ककस़ी अन्य तऱीके से ह़ी कनणावई दरख्तान र् बॉजकोठ की छकतपूकतव करें।" 5. On 21.08.2015, petitioners moved an application for impleadment in the said suit under Order 1 Rule 10 CPC, allowed by order dated 18.10.2010 passed by trial Court, challenged by the opposite party no.4 by filing Civil Revision No.9/2011, allowed by order dated 30.11.2015. 6. Learned counsel for the petitioners while challenging the impugned order submits that the petitioners are a necessary and proper party for adjudication of the dispute involved in the present case as opposite party no.4 has filed a suit against the Gram Panchayat, no cause of action has occurred in his favour. So, keeping in view the above said facts, the order dated 30.11.2015 passed in Civil Revision No.9/2011 is liable to be set aside. 7. In support of his argument, he has placed reliance on the judgment given by a Division Bench of this Court in the case of Dr. Shyam Chandra Srivastava vs. Estate of Padmasri Smt. Savitri Sahni 2010 (28) LCD 799, wherein paragraph no.26 held as under:- "26.In the case reported in AIR 1995 Allahabad 7 (Committee of Management, Ratan Muni Jain Inter College and another. Vs. III Additional Civil Judge, Agra and others) as well as in AIR 1995 298 (Hridaya NarainSingh. Vs. Lal and another), this Court while interpreting the Order I Rule 10 of the Code of Civil Procedure, held that it is the discretion of the court to add certain persons as party keeping in view the facts and circumstances of a particular case. For convenience, relevant portion of the Committee of Management, Ratan Muni Jain Inter College and another's case is reproduced as under:- "The theory of dominus litus should not be over stretched because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is necessary party, the court can order such persons to be impleaded. Merely because the plaintiff does not choose to implead a person, is not sufficient for rejection of an application for being impleaded. The provisions of Order I Rule 10 (2) C.P.C. are very wide 3 and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may at any stage of the proceedings order that the name of any party, 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. So the learned Addl. Civil Judge was totally wrong in believing that Sri Moti Lal Jain's impleadment was not necessary for proper 384 INDIAN LAW REPORTS ALLAHABAD SERIES adjudication of the case. Although at page 4 of the judgment (page 153), while dealing with the point of dominus litus that the court may consider whether the joining of a person is essential or not but still he has proceeded to delude himself that even without the impleadment of Sri Moti Lal Jain, an effective decree could be passed. It amount to play Hamlet without the prince of Denmark." 8. After hearing learned counsel for petitioners and going through the records, in order to decide the controversy involved in the instant matter, it is necessary to go through the provisions as provided under Order 1 Rule 10(2) C.P.C., which reads as under :- "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. " 9. From the perusal of order 1 Rule 10 (2) CPC, it covers two types of cases:- (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. 10. The former is called a necessary party and the latter a proper party. Sub R. (2) of O.1, R.10, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. 10(a). The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications. O. 1, R. 10 (2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and where the impleadment of the said party is necessary and vital for the decision of the suit. It is true that the discretion has to be exercised judicially but at the same time the concerned civil or appellate court where the suit on appeal is pending has also to take into consideration that the party which is necessary to be impleaded will be put to a greater difficulty if not impleaded by the plaintiff who may have ulterior motives of not impleading such party and if the decision is given which may affect the interest of the said party greater 3 All. Paras Nath & Anr. Vs Additional District Judge, Court No. 2, Sultanpur & Ors. 385 prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff because he will have full opportunity to defend his rights and interest as against aggrieved party who has been impleaded as a party to the suit. The important aspect which should be looked into by the Civil Courts while deciding the applications under O.1, R.10(2), C.P. Code is to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded as a result of allowing necessary party to be impleaded in 5 the suit (See Baijnath v. Ganga Devi A.I.R. 1998 Raj. 125) 11. The expression "to settle all questions involved" used in O.1, R.10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof. 12. The Parliament in its wisdom while framing this rule must have thought that all the material questions common to the parties to the suit and to the third parties should be tried once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties (See Abdul Jaleel v. Aishabi A.I.R. 1992 Karn. 380). 13. The word "At any stage" in Order 1 Rule 10 (2) CPC means that there is no requirement of law that an application for addition of a party as defendant must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision (See. Gurmauj Saran v. Joyce C. Salim A.I.R. 1990 Del. 13 (D.B.) 14. The use of the expression "at any stage of proceedings" in O.1, R.10(2) shows that the power vested in the Court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party (See Sardar Ali Khan v. Special Deputy Collector A.I.R. 1973 Andh. Pra. 298 (D.B.). 15. Under Order 1 Rule 10(2) C.P.C., the power to add a party to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. 16. Further, the revisional court while rejecting the petitioner's application for impleadment has given a finding, relevant portion quoted herein below:- "कनगरानीकताव वादी के कर्द्वान अकधर्ता द्वारा माननीय इिहाबाद उच्च न्यायािय की कर्कध व्यर्जथा मोहम्मद फारख्‌ बनाम कजला जज इलाहाबाद र् अन्य १९९२ (२०) ए एि आर पेज ८७६ के प्रजतुत कर काक ककया गया है कक आदेश-१ कनयम ३ र् दुरकभसूंकध से प्राथी के कर्रुद्ध मुकदमा्‌ कनणीत करर्ाने की अूंदेशा्‌ र्ाद़ी को यह अकधकार है कक वह ककसको प्रकतर्ाद़ी के रूप में प्रकतजथाकपत करे्‌ । कनगराऩीकताव र्ाद़ी्‌ की ओर से मानऩीय मध्य प्रदेश उच्च्‌ न्यायािय इूंदौर बेंच की कर्कध व्यर्जथा श्ऱीमत़ी्‌ म़ीरा्‌ राऩी्‌ र््‌ अन्य्‌ बनाम्‌ घनश्याम्‌ शमाव्‌ र््‌ अन्य्‌ २००८्‌ 386 INDIAN LAW REPORTS ALLAHABAD SERIES (२)्‌ से.्‌ प़ी.्‌ से.्‌ ७८्‌ (मध्यप्रदेश) प्रजतुत्‌ की्‌ गय़ी्‌ है्‌ कजससे्‌ यह्‌ कसद्धान्त्‌ प्रकतपाकदत्‌ ककया्‌ गया्‌ है्‌ कक Civil Procedure Code 1908- Order 1 Rule 10 Additionl of party-only a necessary or proper party may be added-Mere interest of a party in Suit can not be true test for being impleaded as party Plaintiff is dominus Litus and can not be forced to add parties against whom he does not want to fight unless was compulsion by Law. 17. Thus, in view of the above said facts as well as law laid down by Hon'ble the Apex Court in the case of Savitri Devi Vs. District Judge, Gorakhpur, 1999 (2) SCC 577, after considering the provisions of Order 1 Rule 10 CPC and the other law on the point in issue, namely, Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors., 1983 (1) SCC 18, Ramesh Hirachand Kundanmal Vs. Municipal Corpn. Of Greater Bombay, 1992 (2) SCC 524 held as under:- "Order I, Rule 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 10. In Khemchand Shankar Choudhari and Anr. v. Vishnu Hari Patil and Ors. [1983]1SCR898 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII C.P.C. The Court said: It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard.... 11. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. [1992]2SCR1 this Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said: "The case really turns on the true construction of the rule in particular the meaning of the words "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". "The Court is empowered to Join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the 3 All. Paras Nath & Anr. Vs Additional District Judge, Court No. 2, Sultanpur & Ors. 387 plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. The Court also observed that though prevention of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum v. Anwar Begum [1959]1SCR1111 that the person concerned must be having a direct interest in the 8 action was reiterated by the Bench." 18. Further, in the case of Vidur Impex and traders Private Limited and others Vs. Tosh Apartments Private Limited and others, 2012 (8) SCC 384, Hon'ble the Supreme Court after considering the various law on the in under consideration and after placing reliance on the judgment of Vinod Seth Vs. Devinder Bajaj, 2010 (8) SCC 1 and Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb, 2004 (1) SCC 191 has held in para No. 41 quoted herein below:- "41.Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: "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, 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 9 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." 19. Accordingly, the petitioner cannot derive any benefit from the law as laid down by a Division Bench of this Court in the case of Dr. Shyam Chandra Srivastava (supra) as the same is not applicable in the facts and circumstances of the case. As such, I do not find any illegality or infirmity in the impugned order dated 30.11.2015 passed by Additional District Judge, Court No.2, Sultanpur. 388 INDIAN LAW REPORTS ALLAHABAD SERIES 20. For the foregoing reasons, the writ petition lacks merit and is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 09.03.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Misc. Bench No. - 4923 of 2016 Jagannath Mishra & Anr. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Shailesh Chandra Tiwary Counsel for Respondents:- C.S.C, Ankit Pande Writ of mandamus has been sought for taking action against the respondents no. 4 to 14 for their having indulged in illegal activities. Held - A strike which endlessly continues for months together - does call for an appropriate action against those who are fostering such strikes but that would be a separate forum and not the writ jurisdiction. Grievance arising out of the action is purely individual to the petitioners and is not related to the dispensation of justice in courts by virtue of being office bearers of a court attached Bar Association - it is for the Bar Council to take an appropriate action, in case unauthorised resolutions. Directed to avail the alternative remedy. IN RESULT - Dismissed/Consigned to records. (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Attau Rahman Masoodi, J.) 1. Heard Sri Tiwari, learned counsel for the petitioners and Sri Ankit Pandey for the Bar Council, respondent no. 2. Learned Standing Counsel has put in appearance on behalf of respondent no. 1. 2. The petitioners are aggrieved by the impugned resolution dated 8.1.2016 and the subsequent resolutions dated 27.1.2016 and 24.2.2016 stated to have been passed by the respondent no. 3 association, as a result whereof petitioners' functioning as the office bearers of the Bar Association, Alapur, District Ambedkarnagar has been impeded.