LAW ON Principles of
dominus litus, mis joinder and non joinder
A
recent judgment of Supreme Court captioned as Asian Hotels (North) Ltd Vs Alok
Kumar Lodha & Ors, Civil Appeal No. 3703-3750 of 2022 has set at
rest as regards the applicability of principles of dominus litus, addition of parties, non joinder or mis joinder as
also the scope of amendment in plaint. Generally, a plaintiff to the suit
claims its right to array such parties as defendant that it chooses to contest
and the omission of parties and including the parties are generally perceived
to be the domain of plaintiff. The Supreme Court in the above case, however has
put fetter to that right and has held that principles of dominus litus is not sacrosanct and arraying parties cannot always be
at the whims of a plaintiff and shall only be available subject to clear right
to sue and cause of action available. If the parties are arrayed mechanically,
and without any right to sue, principles of dominus
litus shall not apply. Moreover, if a party is neither necessary nor a
proper party to a lis, the principles of Order 1 Rule 10(2) of Code of Civil
Procedure could be invoked and the name of such unnecessary party may be
deleted, notwithstanding the opposition by the plaintiff. The amendments, if
sought by the plaintiff, in such a scenario shall have to be dealt with in
accordance with law and mere assertion that the suit is in initial stage shall
be of no aid to the plaintiff.
Merely
because, appropriate parties were
not included in the suit,
the suit shall not be
bad for non-joinder but, if the parties who are necessary
parties, and yet not arrayed as the parties in the suit,
then, in their absence, no final adjudication could be made. Thus, a suit without arraying necesasry
party has to be held bad for non-joinder of necessary parties and the plaintiff has
to face the legal consequences including prospect of dismissal of the suit.
It is now clear that two tests are to
be satisfied for determining the question as to who is a necessary party. The
tests stipulated 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.
In a matter
captioned as Moreshar Yadaorao Mahajan Vs. Vyankatesh
Sitaram Bhedi (D) thr. L.Rs. and Ors MANU/SC/1251/2022
the Supreme Court has held as under:
“20. It can thus be seen that what
has been held by this Court is that for being a necessary party, the twin test
has to be satisfied. The first one is that there must be a right to some relief
against such party in respect of the controversies involved in the proceedings.
The second one is that no effective decree can be passed in the absence of such
a party”.
In Mumbai International Airport Private Limited v. Regency Convention
Centre and Hotels Private Limited and Ors. MANU/SC/0427/2010 : (2010) 7 SCC
417, The Supreme Court has held in para no. 15 that:
“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”.
The Code of Civil Procedure in Order 1 Rule 9 contains principles of mis-joinder and non-joinder
of parties. What is worth mentioning is that till 1977 the principles
contained revolved around the premise that a suit cannot be defeated for non
joined of necessary parties, however, a proviso was added by Act 104 of 1976
vide Section 52 of the Code, w.e.f 1.2.1977 whereunder the suit could
be defeated for the reason of non joined of necessary parties. It is only after
amendment that proviso was added to the effect that "Provided that nothing in this rule shall apply to non-joinder of
necessary party."
In Asian
Hotels (Supra), the Supreme Court has held:
9. From the impugned order
passed by the High Court, it appears that what has weighed with the High Court
is that plaintiffs, is the dominus litus and heavy reliance is placed
in the case of Kasturi v. Iyyamperumal & Ors reported in (2005) 6 SCC 733. However, the principle
that the plaintiffs is the dominus litus shall be applicable only in
a case where parties sought to be added as defendants are necessary and / or
proper parties. Plaintiffs cannot be permitted to join any party as a defendant
who may not be necessary and / or proper parties at all on the ground that the
plaintiffs is the dominus litus.
9.1. Even otherwise, High
Court has materially erred in relying upon the decision in the case of Kasturi (Supra) before this Court the suit was for specific performance of the
agreement to sell and the subsequent purchasers purchased the very property for
which decree for specific performance was sought. Therefore, on facts said
decision is not applicable to the facts of the case on hand.
The
Madras High Court in Rathinaswamy Vs Achi
Kannu SA No. 1698 of 2003 (decided on 04.03.2020) in para no. 21 has succinctly
held as under:
“21.
When proper parties were not included in the Suit, the Suit is not bad for
non-joinder, but if the parties who are not on the array of the parties in the
Suit who are necessary parties in whose absence no final adjudication cold be
made, then the Suit has to be held bad for non-joinder of necessary parties. If
proper parties are not added, the Court may allow further time affording
opportunity to the Plaintiff to include them. But if the necessary parties were
omitted to be included in the Suit, then the Plaintiff has to face the legal
consequence of dismissal of the Suit. In the absence of necessary party, no
effective decree could be passed. In short, non-joinder of proper party is not
fatal, while non-joinder of necessary party is fatal to the case. When the
Court sees that a particular party, who has been ignored by the Plaintiff in
the suit, there is no option for the Court except to dismiss the same”.
The earlier
precedence shall also be worth mentioning. The Supreme Court in Dr Subramanian Swamy vs Ramkrishna Hegde 1990 AIR 113, SC has
held that If the ends of justice so demand, the
case may be transferred under this provision
notwithstanding the right of dominus litus to choose the forum and
considerations of plaintiff's convenience, etc.
cannot eclipse the requirement of justice. Justice must be
done at all costs, if necessary by the transfer
of the case from one Court to another.
Thus, what is clear from
the above is that in an original suit, unless statutorily provided, it is the
discretion of the plaintiff to implead any person as party or who may be joined
as defendants for that matter. The provision of Rule 10 (2) could be exercised by
the court either on application of either of the parties or suo moto if it deems fit to the effect
that any party is a necessary or proper party to the suit. The principle of
“necessary party” is a strict one and this entails that a necessary party shall
be a person, who ought to have been joined as a party and in their absence no
effective decree could be passed by the court. No doubt, in a suit for eviction
or injunction, it is the discretion of the plaintiff to choose the person
against whom he wishes to litigate
as the grievances shall be spelt out against such parties, the plaintiff is
aggrieved of and therefore, he cannot be compelled to sue a person against whom
he does not seek any relief. Conversely, in a suit for partition non joinder of necessary party could be
fatal. There are enactments, though, where it could be prescribed that in a
suit certain party or parties shall be necessary party, as the same may have
been statutorily provided and the necessary party is usually either the State
or any other statutory authority and not a private person. As already
discussed, plaintiff is the dominus litis in a suit
between the private parties and depending on nature of suit, however, it has
been left on the discretion of the court under Order 1 Rule 10 (2) CPC that the
court may strike out or add parties. Even this discretion is to be exercised
judiciously and not merely on whims or on mere asking of a party. A
satisfaction is to be recorded by the court that addition of a party is for
effectual and complete adjudication of all the questions involved in the suit.
Thus, as narrated above, in a suit for eviction or injunction it is the
discretion of the plaintiff to choose the person against whom he wishes
to litigate and cannot be
compelled to sue a person against whom he does not seek any relief.
The principle of dominus litus is therefore an established doctrine, but the same are not absolute and it cannot be stretched beyond a point. The principle shall not subjugate discretion of court and a court can add the parties or delete, even if that is objected by the plaintiff. As elucidated above, the twin test of necessary and proper party are to be satisfied, if parties to the lis are allowed to continue as array of party or some parties are to be added for the purpose of proper and effective adjudication of the case. Necessary parties cannot be omitted and unnecessary party cannot be left to face the rigour of trial. As regards transfer of case also, the same principles applies in as much as though a case or set of cases could be instituted in a court of competent jurisdictions and respective locations as law ordains, still, for the purpose of effective adjudication, the power of transfer is vested in District courts and High Court for transfer of the case or cases. The Supreme Court in any case has similar power as also the plenary power in this regard as well. Therefore, principles of dominus litus is though a well recognized concept, but the same is not absolute and unfettered.
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Anil K Khaware
Founder & senior Associate
Societylawandjustce.com
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