General principle in law of plaintiff being the dominus litis in matter of the persons against whom he wishes to litigate subject to the discretion granted to Court to add or strike-out parties under Order 1 Rule 10(2) of CPC, holds the Apex Court

The Apex Court in Baluram Vs. P. Chellathangam & Ors.¹ has held that the general rule in regard to impleadment of parties 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 and that as a consequence, a person who is not a party has no right to be impleaded against the wishes of the plaintiff, is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure. 

 

Supreme Court of India at New Delhi

The Apex Court was considering appeals preferred against Orders dated 24th November, 2011 and 18th September, 2012 passed by the High Court of Madras, Bench at Madurai in C.R.P. No.2610 of 2010 and in Review Application No.1 of 2012 in C.R.P. No.2610 of 2010 respectively. 

The question raised for consideration of the Court was whether the High Court was justified in reversing the Order of the trial Court allowing the prayer of the appellant to be added as a party in a suit for specific performance filed by the Respondent No.1/plaintiff.

The facts, as revealed from the judgment is as follows : The case of the plaintiff in O.S. No.3 of 2007 filed in the Court of District Judge, Kanyakumari, was that K. Jagathees and R. Subbaram Babu @ Subbaram, Respondent Nos.2 and 3 respectively (original defendants in the suit) acting as trustees of "Subbaiah Paniker Family Welfare Trust" (for short "the Trust") entered into the agreement dated 9th December, 2003 to sell the suit property in favour of the plaintiff. The price of the property was settled at Rs.22,000/- per cent. A sum of Rs.1 lakh was received as advance. The plaintiff was ready and willing to perform his part of the contract but the defendants failed to execute the sale deed even in extended time. When called upon to do so, they took the stand that the sale deed could be executed only if the beneficiaries of the Trust agreed to the sale which was not a valid ground.

During pendency of the suit, the appellant, Baluram filed I.A. No.584 of 2008 in O.S. No.3 of 2007 in the Court of District Judge, Kanyakumari at Nagercoil, for being impleaded as defendant, pleading that he will suffer prejudice being beneficiary of the Trust if the sale is effected at a throw away price. According to him, the value of the property was more than Rs.50,000/- per cent while the proposed sale was for Rs.22,000/- per cent.

The application was opposed by the plaintiff submitting that the beneficiary was a stranger to the agreement and was not a necessary or proper party. The trial Court allowed  the application. It held that the petitioner in the application was not a stranger to the subject matter of dispute and was entitled to be impleaded as a party. In so allowing the application, the trial Court placed reliance was placed on the Judgment of the Madras High Court in S.D. Joseph and Other vs. E. Ebinesan and others² wherein it was held as follows : "Every member who is having interest and right should be given an opportunity of being heard and the court must see whether subject matter could be factually adjudicated upon in the absence of proposed parties in a case where the property belonged to YMCA, a public Trust."

Aggrieved by the Order of the trial Court, the respondent-plaintiff preferred a petition under Article 227 of the Constitution before the High Court with the plea that the appellant was not a necessary or proper party and thus the order of the trial Court impleading him as a party defendant was erroneous. 

The respondent-plaintiff relied on the Judgment of the Apex Court in Bharat Karasondas Thakkar vs. Kiran Construction Co. and others³ The High Court upheld the plea of the plaintiff and dismissed the I.A. No.584 of 2008 filed by the appellant in the suit filed by the respondent-plaintiff. It was further observed that since suit property is a Trust property, the trial Court can look into the relevant provisions of law and examine whether permission of the Court was required before entering into the sale agreement.

It was against the order passed by the Madras High Court that the petitioner in I.A. No.584 of 2008 filed in the suit before the trial Court approached the Apex Court.

The appellant raised the contention that he was certainly a proper party and the trial Court was justified in exercising its jurisdiction under Order I Rule 10(2) of the Code of Civil Procedure, 1908 in impleading the appellant as a party. Even if the Trustee had the right of alienation, the Court was entitled to control the exercise of power of a Trustee under Section 49 of the Indian Trusts Act, 1881 (for short "the Trusts Act"). The appellant was entitled to be impleaded as a party to safeguard his right as beneficiary of the Trust so that the Trustees did not exercise their power of alienation unreasonably. Reliance has been placed on Judgment of this court in Mumbai International Airport (P) Ltd. vs. Regency Convention Centre & Hotels (P) Ltd⁴

The respondent no.1- plaintiff however, opposed the said contention and supported the impugned order passed by the High Court. It was submitted that since the appellant was neither necessary nor proper party, application for impleading the appellant as a party could not be entertained. The appellant was stranger to the transaction and could not object to the sale in question.

The Apex Court held that the High Court erred in interfering with the order of the trial Court impleading the appellant as a party defendant. Admittedly, the appellant is a beneficiary of the Trust and under the provisions of the Trusts Act, the Trustee has to act reasonably in exercise of his right of alienation under the terms of the trust deed. Appellant cannot thus be treated as a stranger. No doubt, it may be permissible for the appellant to file a separate suit, as suggested by Respondent No.1, but the beneficiary could certainly be held to be a proper party. There is no valid reason to decline his prayer to be impleaded as a party to avoid multiplicity of proceedings. Order I Rule 10(2), CPC enables, the Court to add a necessary or proper party so as to "effectually and completely adjudicate upon and settle all the questions involved in the suit".

The Court relied on the dictum laid down in Mumbai International Airport (supra) this Court :

“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 Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

"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 [pic]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."

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.”

“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.”, said the Court. 

The Apex Court followed the dictum laid down in Kasturi⁵ wherein referring to suits for specific performance, the Court held that the following persons are to be considered as necessary parties:

(i) the parties to the contract which is sought to be enforced or their legal representatives;

(ii) a transferee of the property which is the subject-matter of the contract.

“This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.”

The Court then proceeded to consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The Court held “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."

Applying the principle so laid down in the above referred cases, the Apex Court held that in the case at hand, the appellant could not be held to be a stranger being beneficiary of the Trust property. “The trial Court was justified in impleading him as a party. The High Court erred in interfering with the order of the trial Court.”, found the Apex Court. 

Accordingly, the Supreme Court allowed the appeal, set aside the impugned order of the High Court and restored that of the trial Court dated 10th August, 2010, impleading the appellant as a party defendant in the suit.