In a writ petition, the High Court dismissed an challenge to the rejection of an impleadment application. The petitioner failed to establish ownership rights by not producing the original sale deed and lacked a viable case for necessary party status.
The writ petition was dismissed; the original suit was directed to be decided expeditiously.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 36 Case :- WRIT - C No. - 46372 of 2012 Petitioner :- Smt. Manju Sharma Respondent :- Suresh Chand And Another Counsel for Petitioner :- M.P. Tiwari,B.D. Pandey Counsel for Respondent :- S.C.,Lalit Kumar Shukla,Rajesh Gupta
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the order of rejection of impleadment application under Order 1 Rule 10 C.P.C. filed by the petitioner namely Smt. Manju Sharma wife of Sri Mukesh Sharma, on the plea of being owner-in-possession of the suit property, which is shown by letters "BCEG" in the plaint of Original Suit No. 68 of 1999 and has been marked by "red colour" therein.
The said suit was admittedly filed against two persons namely Town Area and Sri Mukesh Kumar, who happened to be the husband of the petitioner namely the impleadment-applicant. A specific stand was taken by the plaintiffs in the plaint itself that the property shown by letters "A.B.C.E" was in the ownership of one Shashi Kumar Agarwal and Sri Prayagnath Pyarelal, who were residents of Mumbai. The plaintiffs had purchased the suit property vide registered sale deed dated 23.01.1998 from its through owner. The property shown by letters "A.B.F.H." in the plaint map is the house of the plaintiffs and by letters "D.E.F.G.", they had shown their latrine, access to which is through the property shown by letters "B.C.D.G.", possession of the plaintiff over which, is being interfered by the defendants.
It was further stated that in the property shown by letters "B.C.D.G." marked by "red colour", four doors and six windows of the plaintiff's house were opening. The house in question, belonging to the plaintiff, is a three-storied house, which has been constructed upto two storied. At the southern side of the disputed property shown by letters "B.C.D.G.", there exists a "kachha patri" which was being used as "Aam rasta".
The petitioner herein has filed the impleadment application under Order 1 Rule 10 C.P.C. on 13.01.2004, claiming herself to be the owner-in-possession of the suit property, shown by "red colour" as noted hereinabove. The basis of ownership pleaded by the impleadment-
applicant was the sale deed dated 13.12.1989, allegedly executed by its true owner namely Jagan Prasad son of Dev Raj. It was stated that the impleadment-applicant got a map sanctioned from the Town area concerned, for making constructions over the plot purchased by her and Original Suit No. 31 of 1998 was filed by the impleadment applicant against one Ismail, had been decreed in her favour on 10.11.1998. The said decree of injunction had become final. With the said assertion, it was sought to be submitted by the impleadment-applicant that he was having all right and interest in the suit property and, thus, is necessary party to the said suit.
The trial court having examined the claim of the impleadment-applicant has rejected the application Paper No. 5-ka (Order 1 Rule 10 C.P.C.) with the specific findings that the impleadment-applicant has failed to make out a case for being necessary party in the suit. The plaintiffs are claiming their right in the suit property on the basis of the sale deed, original of which was filed before the trial court, whereas the impleadment-applicant had filed a photostat copy of the alleged sale deed of the year 1989, allegedly executed in her favour. The suit was being proceeded at the advance stage and there was no occasion for impleadment of the applicant, as she failed to establish her right in the suit property.
It was also noticed by the trial court that the husband of the impleadment-applicant namely Sri Mukesh Sharma was already party as defendant no.2 in the said suit.
The learned counsel for the petitioner submits that the impleadment application has been rejected in a cursory manner. The claim of the applicant to seek impleadment in the array of parties, could not have rejected on the ground that the original copy of the sale deed executed in her favour was not filed. The question as to whether the impleadment-applicant could claim her right in the suit property was subject matter of evidence, to be examined at the stage of trial. The said question could not have been examined at the stage of impleadment. It is contended that even a proper party whose presence may be required by the Court for effective decision of the suit, can be impleaded at any stage of the trial.
To confront this submissions, a pointed query was made as to whether the copy of the alleged sale deed dated 17.12.1989 is part of record of the present petition, and that whether the petitioner can demonstrate to this Court
that the suit property shown by letters "E.C.D.G." marked by "red colour", is part of the property, allegedly purchased by the applicant. Learned counsel for the petitioner showed his inability to place the said facts before this Court, inasmuch as, the copy of the alleged sale deed is not on record of the present petition.
On another question asked by the Court as to whether any such stand was taken by the defendant no.2 i.e. her own husband, who has been impleaded in the instant suit, learned counsel for the petitioner shows his inability to reply. The written statement if any, filed by defendant no.2, is not part of record of the present petition.
The learned counsel for the petitioner at this stage, places paragraph "13" of the rejoinder affidavit filed in the present petition to submit that the impleadmentapplicant/petitioner was not aware of the proceedings of the instant suit on account of the fact that she was living separately from her husband from the year 1997. These averments made for the first time in paragraph no.13 of the rejoinder affidavit, are not supported by any such averments being made in the impleadment application, and, therefore, are not believable.
The object of Order 1 Rule 10 C.P.C. is to bring all necessary or proper parties in a proceedings together, so as to avoid any protraction of the proceedings and to facilitate the Court to effectively decide all disputes between the parties and to avoid multiplicity of the proceedings. A careful perusal of the provision under Order 1 Rule 10 (2) C.P.C. indicates that it is more about the power of the Court rather than right of a person to be impleaded in a suit proceedings. The general rule that the plaintiff is master of the suit being dominus litus , is subject to the power given to the Court under sub-Rule (2) of Rule 10 of Order-1; C.P.C. The Court at any stage of the proceedings may strike the name of a party, if it finds that any party has been improbably joined. It may also allow a party to join at any stage of the proceedings either suomotu or on application of the plaintiffs or defendants or on an application of any person who is not party to the suit, in case, it finds that presence of such a party is necessary to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit.
In any case, the stranger to the suit proceeding, cannot be impleaded as defendant, as against the wishes of
plaintiff, inasmuch as, it is the wish of the plaintiffs to bring his action against the person who is interfering in his right to the suit property. In case, the suit having been filed in the name of wrong person and the plaintiff having failed to make out his case, the suit would necessarily fall. However, in case, a person is seeking his right in the suit property and seeks impleadment by filing application under Order 1 Rule 10 C.P.C., he has been to make out a case for being joined as necessary or proper party in the suit.
A necessary party is one without whose presence, the suit cannot be decided whereas, a proper party is one in whose absence, the issues may be decided but whose presence would enable the Court to effectively decide all disputed questions before it. The principles as noted hereinabove have been laid down by the Apex Court in the case of Vidur Impex & Traders Pvt. Ltd. and others Vs. Tosh Apartment Pvt. Ltd. and others 2012 (8) SCC 384 .
In the light of the above legal position, having examined the facts of the instant case, this Court finds that the petitioner who is seeking impleadment as defendants in original suit no. 68 of 1999 claiming to be owner-inpossession of the suit property, has utterly failed to make out a case of having any right in the suit property. She cannot be said to be either necessary or proper party to the suit. The impleadment application, in the opinion of the Court has been filed in order to protract the proceedings of the instant suit which has been filed against the husband of the impleadment-applicant.
For all the aforesaid, no infirmity is found in the order impugned. The present petition is found devoid of merits and hence dismissed.
Noticing that the original suit no. 68 of 1999 has remained pending for long on account of the impleadment application filed by the petitioners/applicants, a direction is issued to the trial court namely the Civil Judge, Junior Division, Mathura to make an endeavour to decide the original suit no. 68 of 1999, as expeditiously as possible, preferably, within a period of one year from today without granting unnecessary adjournment to any of the parties.
Subject to above, the present petition is dismissed .
Order Date :- 20.2.2019/M. ARIF
3 issues framed by the court
Whether the petitioner is a necessary or proper party under Order 1 Rule 10 CPC to be impleaded in the original suit.
Whether the impleadment application can be rejected summarily when the petitioner failed to produce the original sale deed.
Whether the impugned order rejecting the impleadment application remains devoid of merits.
Colour shows how this judgement treated each authority
Vidur Impex & Traders Pvt. Ltd. and others Vs. Tosh Apartment Pvt. Ltd. and othersReferred¶19
Vidur Impex & Traders Pvt. Ltd. and others Vs. Tosh Apartment Pvt. Ltd. and others 2012 (8) SCC 384 · Who else cites this
1 provisions across 1 enactments
Smt. Manju Sharma
Suresh Chand
Sunita Agarwal
As recorded by the court registry
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