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Deepak Kumar v/s Mithun Khajuria & Others


Company & Directors' Information:- DEEPAK INDIA PRIVATE LIMITED [Active] CIN = U24231RJ2000PTC016781

Company & Directors' Information:- DEEPAK PVT. LTD. [Strike Off] CIN = U51109UP1951PTC001208

    CR. No. 48 of 2020, CM. Nos. 3882 & 3883 of 2020 & Caveat No. 1406 of 2020

    Decided On, 14 August 2020

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJEEV KUMAR

    For the Petitioner: Abhinav Sharma, Advocate. For the Respondents: G.S. Thakur, Advocate.



Judgment Text


1. The petitioner, who is plaintiff in a suit for permanent prohibitory injunction instituted in the Court of learned Munsiff, Katra (hereinafter "the trial Court" for short) has invoked the supervisory jurisdiction of this Court vested by virtue of Article 227 of the Constitution for quashing and setting aside the order dated 24th July, 2020 passed by the trial Court, whereby and where under an application moved by respondent No.7 seeking his impleadment as party defendant in the suit titled Deepak Kumar v. Mithun Khajuria and others has been allowed.

2. The impugned order has been assailed primarily on the following grounds:-

a) The petitioner-plaintiff being dominus litis cannot be forced or compelled to array anybody as party defendant and to litigate against such person against whom he may have no cause of action. The trial Court has not appreciated the fact that respondent No.7 has no right, title or interest in the subject matter of suit and, therefore, cannot be permitted to intermeddle in the litigation at the instance of others.

b) The trial Court also did not appreciate that unnecessary presence of respondent No.7 in the suit would only protract the trial and delay the disposal of the suit.

3. Mr. Abhinav Sharma, learned counsel appearing for the petitioner, placing strong reliance on a judgment of the Supreme Court rendered in the case of Gurmit Singh Bhatia v. Kiran Kant Robinson and others, Civil Appeal Nos.5522-5523 of 2019 decided on 17.07.2019 submits that the petitioner being dominus litis is entitled to decide the parties, he should be litigating against and the civil court cannot compel him to implead someone as party, more so, when the plaintiff has no grievance or cause of action against such party.

4. Per contra, Mr. G.S.Thakur learned counsel for the respondent No.7, submits that given the fact that it is respondent No.7, who is in actual physical possession of the suit property, it is in the interest of justice and for effective adjudication of the lis to array respondent No.7 as party defendant. This would also avoid multiplicity of litigation, contends Mr. Thakur.

5. Heard learned counsel for the parties and perused the record.

6. It would be necessary to first set out the provisions of Oder-1 Rule 10 of the Code of Civil Procedure, which are reproduced hereunder:-.

"10. Suit in name of wrong plaintiff. -

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

7. Sub Rule 2 of Rule 10 confers wide discretion to the Court to strike out or add parties, subject to two limitations i.e. (i) That the Court has no power to join a person as a party, if he could not have been originally impleaded under Order-1 Rule 1 and Rule 3 CPC, and (ii) That the presence of person added must be necessary to effectively and completely adjudicate upon and settle all questions involved in the suit.

8. As noted above, addition or deletion of parties to the suit lies in the discretion of the Court and the discretion must be exercised in reasonable manner so as not to cause inconvenience or embarrassment. The Rule does not authorize the Court to introduce into a suit as defendant a person, who claims the property in suit by title quite distinct from that under which the parties to the suit are litigating.

9. It is true that the plaintiff is the best judge of his own interest and no defendant should be added against the plaintiff's will even when the defendant asserts that his interests will be adversely affected by the suit of the plaintiff.

10. The principle of dominus litis, as vehemently propounded by Mr. Abhinav Sharma, learned counsel for the petitioner, is subject to well known exceptions contained in order -1 Rule 10 (2) of the Code of Civil Procedure, which provides for impleadment of proper or necessary parties. The judgment of the Supreme Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Pvt. Ltd. and others, (2010) 7 SCC 417 has dealt with the issue of proper and necessary parties at some length. Paragraph Nos. 14 and 15 of the judgment is relevant to the controversy and are, thus, reproduced hereunder:-

"14. The said provision make 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 property 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 "property party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudeicate 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 property party to the suit for specific performance."

11. It is worthwhile to notice that in the aforementioned case it was argued that there was conflict of opinion in the decision of two-Judge Bench in the case of Sumtibhai and others v. Paras Finance Company, 2007 (10) SCC 82 and earlier three-Judge Bench decision in the case of Kasturi v. Iyyamperumal, (2005) 6 SCC 733. The Supreme Court after careful consideration of the rival contentions found that there was no conflict between the two decisions and that two decisions were dealing with two different situations. Regarding true scope and ambit of Order-1 Rule 10(2) CPC, the Supreme Court in paragraph No.21 concluded thus:-

"21. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibhai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay, (1992) 2 SCC 524 and Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC 147 also explain in what circumstances persons may be added as parties."

12. Keeping in view the principles relating to impleadment of parties discussed in the aforementioned judgment of the Supreme court, I find that respondent No.7 may not be a necessary party to the frame of the suit filed by the petitioner but nonetheless, he claiming to be in possession of the suit property as tenant thereof, is a proper party and and not a mere interloper or intermeddler. True it is that the petitioner has filed a suit for permanent prohibitory injunction restraining respondent Nos. 1 to 6 from causing any interference in his possession over the suit shops, which are four in number. Respondent No.1 in his written statement filed before the trial Court has taken the plea that the suit shop situated at Ward No.4 near Bus stop Katra is under the tenancy of respondent No.7, wherein respondent No.1 and respondent No.7 are running the business under the name and style of M/s Modern General Store. In short, respondent No.1 in his written statement has claimed to be a joint tenant along with respondent No.7 in the suit shop. However, case of respondent No.7, as set up in the application, is that he is the original tenant since the time of the father of the petitioner and is in possession of the suit shop for the last more than 50 years. There is no dispute with regard to the proposition that the petitioner being dominus litis is entitled to decide the parties he intends to litigate against but as noted above and reiterated here it is subject to the provisions of Order-1 Rule 10(2) CPC. In a suit for permanent prohibitory injunction filed by the petitioner, it is the decision of the petitioner to array party defendants against whom he may have cause of action to sue. The petitioner apprehends interference at the hands of respondent Nos. 1 to 6 and therefore, is well within his right to array them as only party- defendants. It may also be correct that the petitioner may have no grievance against respondent No.7 but looking to the nature of controversy involved in the suit where respondent Nos. 1 and 7 are both claiming to be the tenant of the suit premises; Respondent No.1 claimimg to be the joint tenant of suit shop along with respondent No.7 whereas respondent No.7 claimimg to be in exclusive possession of the suit shop for the last 50 years, presence of respondent No.7 in the suit may not be necessary but would definitely enable the Court to effectively and completely adjudicate the controversy involved in the suit.

13. Looked from this angle, one would conclude that respondent No.7 is not a necessary party and the suit can proceed even in his absence. Whether or not in the given facts and circumstances, respondent No.7 would be a proper party is a question that was vehemently debated before this Court. The trial Court has found respondent No.7 as proper party and has, accordingly, exercised its discretion to implead him as party defendant in the suit. As rightly observed by the trial Court, addition of respondent No.7 to the suit may not prejudice the petitioner but it would necessarily avoid multiplicity of litigation and help adjudication of the dispute in effective manner. I am saying so because in the suit filed by the petitioner for permanent prohibitory injunction, the question of actual physical possession of the suit property would be at the centre stage and in these circumstances, when the trial Court would be called upon to adjudicate upon the factum of possession of the suit property, presence of respondent No.7, who, on the basis of documents appended with his application, claims to be in actual physical possession of the shop amongst the suit property, would necessarily help the trial Court in adjudicating the controversy effectively and in proper perspective.

14. In the case of Gurmit Singh Bhatia (supra), the Supreme Court was dealing with a suit for specific performance of contract and the judgment is clearly distinguishable on facts. In the instant case, as noted above, for effectively deciding the suit for permanent prohibitory injunction, the trial Court will have to necessarily go into the question of possession and for determining possession of parties qua the suit property, presence of respondent No.7, amongst others, would be desirable, if not necessary. The trial Court has exercised its discretion on the basis of material before it and the same cannot, by any stretch of reasoning, be termed as arbitrary, unreasonable or against the settled principles of law.

15. The order impugned, viewed from any angle, does not result in serious miscarriage of justice. The power of superintendence of this Court under Article 227 is not available to interfere with the discretionary orders passed by the Civil Courts in the course of suit, unless such orders are found to be grossly irrational or perverse. The discretion vested in this Court under Article 227 of the Constitution is, thus, required to be exercised in rarest of the rare case. Legal position in this regard is well settled and is not required to be reiterated aga

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in. 16. The observation of Hon'ble the Supreme court in the case of Ouseph Mathai v. M. Abdul Khadir, 2002 (1) SCC 319 made in para 4 are noteworthy and are quoted below:- "4. It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party." 17. I do not find the order impugned falling in any of the categories noted by Hon'ble the Supreme Court in the aforesaid case. 18. For the foregoing reasons, I find no merit in this petition, the same is, accordingly, dismissed along with connected application(s).
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