PRINCIPLES OF ADDITION OR DELETION OF PARTIES – ANALYSIS OF ORDER 1 RULE 10 CPC

 

Principles of ADDITION OR DELETION OF PARTIES – ANALYSIS OF order 1 Rule 10 cpc

The principles of Order 1 Rule 10 of Code of Civil Procedure is one of the more pervasive provisions and the same is in use more often in a proceedings. When a suit is filed by a plaintiff, the defendants or plaintiff may seek addition of a party to the suit. The defendant may seek deletion of defendant  from array of parties or even addition of some defendants Similarly, the plaintiff may also seek impleadment/addition or deletion of parties depending upon the course of proceedings. Thus, if any party to the suit is inadvertently left out, they may be added, conversely, if any party is arraigned without real cause, the name or names could be del3eted by courts. yet another dimension to it is seeking of impleadment in a suit by a third party, in as much as the third party may have intrinsic and inherent interest in the subject matter in a suit. The principles may therefore be analyzed so as to ascertain the provision threadbare.

The parties to the lis is usually set out by plaintiff and the doctrine of Dominus litus enables a plaintiff to seek relief against a defendant or set of defendants. The issue however is whether a plaintiff shall have Carte blanche or there could be some fetter attached to it. In other words whether the court shall have discretion while dealing with the issues of deleting or adding of parties. If so, what are the mechanism, procedure and judicial precedents in this regard, besides some ancillary issues which may be germane in the context shall also be analysed. The provision therefore is required to be deciphered in the touch stone of law. However, befor3e proceeding further, the provision as contained in Order 1 Rule 10 (2) of Code of Civil Procedure may be reproduced here-in-below:

"Order I Rule 10 CPC

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.

DOMINUS LITUS: WHETHER ABSOLUTE

The term dominus litus implies that suit belong to plaintiff and it is the option  of the plaintiff to seek addition of party. It is a basic assumption that the plaintiffs shall have the right to sue or not to sue a person as seeking relief against a person shall be the domain of plaintiff. In other words, a plaintiff cannot be compelled to lock horn with such defendants or parties against whom the plaintiffs may not have any grievance. Whether this is a golden rule? Not quite, if that was to be so, many genuine grievance of a prospective party may remain in oblivion. The principles of dominus litus therefore cannot be allowed to be over stretched in the matter of impleading of parties, because, ultimately, it is the duty of the court to ensure that the real controversy between the parties are adjudicated and in that view of the matter, if a party appears to be necessary party, the addition of that can be permitted. This clearly reflects that it is not the sole prerogative of the plaintiff to opt or implead a person. The provision  of Order 1 Rule 10(2) of Code of Civil Procedure are very wide and so are the powers of the court. The courts may order addition or deletion of a party, even  without an application to that effect at any stage of the proceedings. The basic principles, being,  if 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 with a view to decide the controversy or dispute, effectually and completely, the courts can order accordingly.

In Partition Suit, the principle of dominus litus is not strictly applicable since the plaintiff and the defendants shall have shares in the property. Similarly, in a suit for Specific performance, the plaintiff shall be dominus litus and cannot be forced to add parties, against whom he does not want to contest, unless, it is a compulsion of the rule of law Ads regards.  Execution petition it may be pertinent to refer to Changanti Lakhmi Rajyam & Ors Vs., Kolla Rama Rao, 1998(1) ALD 497 wherein the hon’ble Division bench of Andhra Pradesh  High Court has held that Order 1 Rule 10 C.P.C., is applicable to suits and appeals and not applicable to the execution proceedings. The legal heirs of judgment debtors (JDs), if any will have to agitate under Order 21 Rule 58 or Rule 101 Code of Civil procedure which contains comprehensive provisions to that effect.

In OA NO. 19/2011 in CS(OS) 1098/2008 SHRI PRATAP SINGH versus MR. RAHUL GUPTA & ORS under Rule 4 of Chapter II of Delhi High Court (Original Side) Rules, 1967 the hon’ble Delhi High Court has held as under:

 “Throwing some light on the principle of ‘Dominus Litis’, It is no more res integra, that in a case where the Court deems it necessary and proper , to implead any party depending upon the circumstances of the case, it is at the discretion of the Court, to direct impleadment of such a party whose presence is found necessary and proper in effective and proper adjudication of the disputes against the wishes of the plaintiff, the 'dominus litis'. Rule 10 (2) CPC 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. In exercising its judicial discretion under the said rule, the court will of course act according to reason and fair play and not according to whims and caprice. It is a well settled proposition of law that the Court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he so wishes”.

APPEALLATE PROVISIONS

If a party does not succeed in the court of first instance for seeking addition or deletion of parties, as the case may be, he may prefer appeal in higher court. However, in case of order passed under the provision of Order 1 Rule 10 of CPC, by Joint Registrar of Delhi High Court, then Delhi High Court (Original Side) Rules prescribes chamber Appeal before the single judge of Delhi High Court. The order passed by the ld Single Judge, can still be appealable before the Division bench of Delhi High Court.   

In Mohannakumaran Nair Vs. Vijayakumaran Nair reported in AIR 2008 SC 213 the Supreme Court has observed that Application of doctrine of dominus litus is confined only to the cause of action which would fall within Sections 15 to 18 of the Code of Civil Procedure and it will have no application in case Section 20 of Code of Civil procedure is sought to be invoked.

Necessary and proper parties

The law that has evolved in this context if analysed, even cursorily shall reflect that there are two kind of persons who may be added as party to the suit:

(i) Person who is a necessary party i.e., in the absence of such a party, no relief in the suit can be granted. It implies that a person who ought to have joined must necessarily be added

(ii) the second kind of persons shall comprise of such person, who may appear to be a proper party or parties. The proper parties may be such, in absence of whom , the lis cannot be fully and effectually adjudicated.

In Kasturi Vs., Uyyamperumal & Ors reported in (2005) 6 SCC 733, the Hon’ble Apex Court observed that:

“it is now clear that two tests are to be satisfied for determining the question, who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.”

The Hon’ble Apex court laid down the following broad principles in a matter captioned as Razia Begum Vs. Anwar Begum AIR 1958 SC 886:–

“(1) The principles of Order 1 Rule 10 of CPC is that of judicial discretion and should be exercised in the circumstances of a particular case;

(2) That in case a suit regarding property, a person may be added as a party, when he has a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation;

(3) where court comes to the conclusion that only by adding a party, effectual and complete adjudication of the controversy is possible;

 (4) The cases, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act;

(5) The court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant and courts may insist upon a clear proof to that effect;

 (6) What is of significance is that any declaratory decree on the question of status may  affect not only the parties actually before the Court, but generations to come, therefore, the rule of ‘present interest’ does not apply while negating the other possibilities; and

(7) The rule laid down in S. 43 of the Specific Relief Act, is not a rule of res judicata.”

In Mahadeva Rice & Oil Mills Vs. Chennimalai Gounder reported in AIR 1968 Mad. 287, the Hon’ble Madras High Court had explained the pith and substance of the provision Order 1 Rule 10 C.P.C. The following principles had emerged:

 1. If, for the adjudication of the "real controversy" between the parties on record, the presence of a third party is necessary, then he can be impleaded.

2. By such impleadment all controversies arising in the suit and all issues arising thereunder may be finally determined thereby avoiding multiplicity of proceedings over the same  subject matter;

3. The proposed party should have a defined, subsisting, direct and substantive interests in the litigation, either legal or equitable;

 4. A party should not be added if it is aimed at merely as a ruse to ventilate certain other grievances of one or the other of the parties;

What is of paramount importance is that impleading a party may be dealt with only after according thoughtful consideration , so as to ensure that that no prejudice would be caused to the opposite party by unnecessary impleadment, when  the purported interest has no nexus to the subject-matter of the suit.

In Antony Devaraj v. Aralvaimozhi (Kurusadi) Devasahayam Mount Oor and Thuya Viagula, Annai Church rep by the Trustee, reported in 2004(2) C.T.C. 183 the Hon’ble Madras High Court had considered the right of a third party to claim addition of party. It was held as follows:-

“(i). The person to be added as one of the parties must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to given on some of the questions involved, but it should make him as necessary witness.

(ii). The third party cannot be considered to be a necessary party for deciding the main issue framed in the suit. Mere ground that inclusion of the proposed third party would not alter the structure of the suit may not entitle the party to ask the Court to implead the third party as a defendant.

(iii). The Court may upon an application or suo motu, in a fit and proper case, implead a new party as defendant, even against the plaintiff’s consent under certain circumstances. The discretion vested with the Court though wide is however circumscribed by the limitations which are built in the provisions contained in Order 1 Rule 10(2), C.P.C. Where a person is neither necessary nor proper party, the Court has no jurisdiction to add him as a party.

(iv) A person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit.

(v) Persons whose interest would be affected by the litigation are entitled to come on record to protect their interest when those are jeopardized by the persons already on record”

In Mumbai International Airport vs., Regency convention Centre reported in AIR 2010 SC 3109 the Hon’ble Apex court had dealt with the aspect of exercise of discretion for adding of parties:-

         1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for nonjoinder of a necessary party.

2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession.

3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.

4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application, even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms.

The application for impleadment may be made at any stage and no stage is prescribed for this purpose. The Order 1 Rule 10(2) provides that the court can add a person or organization as a necessary party at any stage of the proceedings. A second application can also be entertained in proceedings of a suit in case there are changes in circumstances.

The Supreme Court in the case of  Sumtibai & Ors. Vs. Paras Finance Co. Regd. (2007) 10 SCC 82 has held that even in the suit for specific performance, a third party who may have rights in the lis may be added as a party.  

In Mumbai International Airport (Supra), while dealing with an argument of a conflict between the decisions in Kasturi (Supra) and Sumtibai (Supra) held as under:

"18. In Kasturi, this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

 

It may be noted however that the provision under Order 1 Rule 10 of Code of Civil Procedure is a general procedure and in case of special enactment where procedure is laid down, the proceedings under Order 1 Rule 10 of CPC shall not apply The election law and Land Acquisition Act for instance, are special enactment  and such provision shall have no applicability in that case.

The provision also does not deal with the substitution of legal representatives of a deceased party. It is worthwhile to point out that Order 22 Rule 4 of Code of Civil procedure stipulates that parties(Legal heirs0  could be brought on record. Needless to say, that if the right to sue does not survive, the suit shall abate.

CONCLUSION

The discussion as aforesaid and meticulous advert on the provision of law and settled proposition of law shall clearly reflect that that as a general rule, the plaintiff may be considered as dominus litus and the broad principles is that a plaintiff cannot be made to contest against a person, against whom he does not wish to lock horn and against whom no relief is claimed. However, that rule in itself is not absolute and therefore, wide discretion to grant a relief under Order 1 Rule 10(2) C.P.C is conferred on courts and in apt cases, the third party as a party/as a defendant to the suit could be added if it is found by the court that presence of such prospective party is essential, being a necessary and proper party and in their absence, effectual decision of the matter is not possible. Thus, if it is found that addition of the new defendant is absolutely necessary to effectively and completely adjudicate the controversy between the parties, such party shall be added as a party or as defendant, even without the consent of the plaintiff. The power of the courts is not circumscribed in any manner, whereas, the principles of dominus litus has a clear fetter as elucidated above and cannot be claimed as an absolute right.

                                           Anil K Khaware

Founder & Sr Associate

Societylawandjustice.com