A.K. Rath, J
1. By this petition under Article 227 of the Constitution, challenge is made to the order dated 20.11.2017, passed by the learned Civil Judge (Junior
Division), Bhadrak, in C.S. No. 140 of 2006-I whereby and whereunder, the learned trial Court rejected the application of the plaintiffs under Order 1
Rule 10 CPC for impleadment.
2. Plaintiffs-opposite party nos. 1 and 2 along with proforma defendant no. 5 have instituted the suit for declaration of title, confirmation of possession
and in alternative for recovery of possession, in the event they are dispossessed during pendency of the suit and permanent injunction. During
pendency of the suit, the defendant no. 5 died, whereafter the plaintiffs filed an application for substitution. The same was allowed. While matter stood
thus, the petitioners have filed an application under Order 1 Rule 10 CPC to implead them as defendants stating, inter alia, that they are legal heirs of
the defendant no. 5. But the plaintiffs had not impleaded them intentionally. To substantiate the case, the intervenors filed voter identity card as well as
adhar card. They are proper parties to the suit. Plaintiffs filed objection to the same.
3. Learned trial court rejected the application holding, inter alia, that only submitting the voter identity card and adhara card, it will not strengthen the
claim of the intervenors. The address of the intervenors and the proforma defendant no. 5 is different. Held so, it rejected the application.
4. Heard Mr. Anupam Dash, learned counsel for the petitioners. None appears for the opposite parties instead of valid service of notice.
5. Mr. Dash, learned counsel for the petitioners submits that petitioner no. 1 is the second wife of proforma defendant no. 5. Other petitioners are
daughter and sons of proforma defendant no. 5. After death of proforma defendant no. 5, plaintiffs filed an application for substitution, but they have
left out the petitioners. Thereafter the petitioners filed an application for intervention. The petitioners have filed voter identity card as well as adhara
card. But then, learned trial court rejected the same on untenable and unsupportable grounds.
6. In Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, the apex Court 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 moveable or immoveable property.
7. The distinction between a necessary party and a proper party is well known. In Mumbai International Airport Private Limited v. Regency
Convention Centre and Hotels Private Limited, (2010) 7 SCC 417, the apex Court held:
“13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he
wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no
right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil
Procedure (“the Codeâ€, for short), which provides for impleadment of proper or necessary parties.
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14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even
without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any
person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in
order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the
discretion to add as a party, any person who is found to be a necessary party or proper party.
15. 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 a person is not found to be a proper or necessary
party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit
property after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific
performance.
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22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of
a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The
discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person
who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if
it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court
deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair
play and not according to whims and caprice.â€
8. Reverting to the facts of the case and keeping in view the law laid down by the apex Court in the cases cited supra, this Court finds that the
petitioners have filed the voter identity card and adhar card. From the said documents, it is revealed that they are the legal heirs of proforma defendant
no. 5. They have direct interest in the subject-matter of litigation. There is no reason to disbelieve the voter identity card and adhar card, which are
public documents. The petitioners are proper parties to the suit.
9. In the wake of aforesaid, the order dated 20.11.2017 passed by the Civil Judge (Junior Division), Bhadrak, in C.S. No. 140 of 2006-I is quashed.
The application for impleadment is allowed. Learned trial court shall do well to implead the petitioners as proforma defendants and proceed with the
matter. There shall be no order as to costs.
