Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., while rejecting the present petition, upheld the decision of the trial court as the transposition seemed to have no effect on the nature and scope of the suit or interest of the parties involved.

Background

An application moved by one Shri Subhash Chand Puri (original proforma defendant 7) under Order 1 Rule 10 (2) read with Section 151 of Code of Civil Procedure, 1908 for transposing him as co-plaintiff was allowed by the Trial Court vide order dated 12-06-2019. Aggrieved defendant 1 (Surinder Kumar) has preferred the present petition under Article 227 of Constitution of India.

 Observation

In addition to its decision, the Court considered the following cases;

Gurmit Singh Bhatia v. Kiran Kant Robinson, 2019 SCC OnLine SC 912, wherein the Supreme Court adhered to its earlier judgment in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 observing, “Order I Rule 10 CPC  cannot be invoked unless the party proposed to be added has direct and legal interest in the controversy involved in the suit.” Two tests were laid down to determine as to who is a necessary party; (1) There must be a right to some relief against such party in respect of controversy raised in the proceedings (2) No effective decree can be passed in absence of such party. It was further observed that a party claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, in a civil suit for performance, is not a proper party. Addition/impleadment of such party shall enlarge the scope of civil suit for specific performance to suit for title and possession, which is impermissible.

  1. Dhanasundari v. A.N. Umakanth, 2019 (4) SCALE 161, wherein it was observed that object of Order 1 Rule 10 CPC is essentially to bring on record all the persons who are parties to the dispute relating to the subject matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceeding be avoided.

Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745, where the Supreme Court reiterated the principle laid down by the Privy Council in Bhupendra Narayan Sinha v. Rajeshwar Prasad, 1931 SCC OnLine PC 32, in the words, “…for effective and complete adjudication and settling all the questions involved in the civil suit, the Court has power under sub-rule (2) Order 1, Rule 10 C.P.C. to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transportation should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo-motu to do complete justice between the parties.”

 Decision

Dismissing the present petition, the Court held, Due to subsequent events, proforma defendant 7 had started sailing in the plaintiffs’ boat and had acquired interests common to the plaintiff. It was then a logical corollary to transpose the proforma defendant as a co-plaintiff. Refusal to do so would cause him prejudice. By such transposition, nature and scope of civil suit was not being changed or enlarged. Claim of proforma defendant was not inconsistent with that of original plaintiff, who had dominus litis. The issues relating to lease deed pertain to merits of main case and can be adjudicated there. There is thus no error in the impugned order passed by the learned trial Court transposing proforma defendant No. 7 as co-plaintiff.”[Surinder Kumar v. Sham Sunder, 2020 SCC OnLine HP 2855, decided on 03-12-2020]


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Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., allowed the petition which challenged the order of the trial court whereunder the application of the plaintiffs filed under Order 1 Rule 10 CPC to implead the wife of Defendant 1 was rejected.

The facts of the case were that the plaintiffs-petitioners had instituted the suit for permanent injunction and recovery of possession impleading the wife of the defendant as Defendant 2.

The contention of Mr A.P. Bose, Advocate for the petitioners, was that a part of the suit land had been alienated to the wife of the defendant. The said fact came to the knowledge of the plaintiffs after the written statement was filed. The hearing of the suit had not begun. The intervenor was a necessary party to the suit.

The counsel for defendants Mr S. Udgata, submitted that the written statement was filed in the year 2011. But then, the petition for impleadment was filed after a gap of five years. The intervenor was neither necessary nor proper party to the suit.

The Court relied on the case of Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, wherein the Apex Court had held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to movable or immovable property. The suit scheduled land had been alienated to the wife of the defendant. In view of the same, the intervenor was a necessary party to the suit thus the petition was allowed. [Ramesh Chandra Sahoo v. Ranjit Kumar Singh, 2018 SCC OnLine Ori 436, decided on 19-12-2018]