Parag Prakash Mutha v. Kashinath Barku Bhalsingh & Ors.

13. The operative portion of the order dated 10 January 2022 passed by the Trial Court reads thus:- “1. Application is allowed.

2. Plaintiff is directed to add third party as party to this suit and carry out necessary amendment to that effect and also supply the copy of the plaint to him.” (emphasis and underlining supplied)

14. Thus, though Respondent Nos.[5] and 6 prayed for their impleadment as Plaintiff No.2 and Plaintiff No.3 to the suit, the Trial Court has directed their impleadment not as Plaintiffs but as ‘party’ to the suit. The Trial Court ought to have specified in its order the capacity in which Respondent Nos.[5] and 6 are directed to be added as parties to the suit. However, unfortunately the same is Neeta Sawant 11/27 7-WP-662-2023 not done and the capacity in which they are to be added is left to the imagination. Such a course of action ought to have been avoided by the Trial Court.

15. There is yet another glaring error committed by the Trial Court while deciding the impleadment application. The application was filed both by Respondent Nos.[5] and 6 for their impleadment. However, the reasonings recorded by the Trial Court would indicate that the Trial Court has recorded the reasons why only Respondent No.5 (father) is a necessary party. There is no discussion as to why mother is required to be impleaded as a party to the suit. The findings recorded by the Trial Court for allowing the impleadment application in para-5 of the order are as under: “5]. I have gone through them. The dictum in the aforesaid judgments is that for proper adjudication and to prevent multiplicity of the suit, court can add or delete parties. So, for two purposes, party can be added or deleted. One is for proper determination and another for preventing multiplicity of the suits. It is no doubt clear from the sale-deed on record that the subject matter of suit was purchased by the father in 1992 when son was minor. He had no source of money. The father has paid consideration for sale-deed. As per father, the suit property was purchased for the benefit of family. There is exemption to the Benami transaction if Karta of the family purchases property in the name of member of family for the benefit of family. This case is nearer to that exemption and in that sense for proper adjudication as well as for preventing the multiplicity of suit, father is necessary party to this proceeding.” Neeta Sawant 12/27 7-WP-662-2023

16. The above findings would show that the Trial Court has ventured to decide why father is a necessary party to the suit. Even the operative portion of the order directs addition of ‘third party as a party to the suit’ and not ‘third parties as parties to the suit’. It is therefore once again unclear whether only father is to be added as a party to the suit or even mother is directed to be added as a party. The Trial Court was dealing with a common application filed by both father and mother and therefore ought to have discussed as to why both of them are necessary parties and ought to have issued a specific direction whether both of them should be impleaded as parties or not. This is yet another error in the order passed by the Trial Court.

17. Be that as it may, now I proceed to determine the issue of correctness of the order dated 10 January 2022 on a presumption that both Respondent Nos.[5] and 6 have been directed to be added as parties since the application has been allowed. Such presumption is necessitated as the operative portion of the order directs that ‘the Application is allowed.’ The question whether they are to be added as Plaintiffs or Defendants still begs an answer. In absence of any clarity in this area, leaving aside the issue whether they can be added as Plaintiffs or Defendants, I first proceed to determine whether they are necessary parties for being added to the suit under the provisions of Order 1 Rule 10 of the Code. Neeta Sawant 13/27 7-WP-662-2023

18. Court are conferred with power to add or strike out parties under provisions of Order 1 Rule 10 of the Code, which reads thus: “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 copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. Neeta Sawant 14/27 7-WP-662-2023 (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.”

19. Court’s power to implead parties under the provisions of Order 1 Rule 10 has been a subject matter of numerous decisions of the Apex Court. It has been repeatedly emphasized that a Plaintiff being dominus litis of his/her suit, cannot be forced to sue or seek relief against undesired person. Only those parties, in whose absence, suit cannot be effectively decided can usually be added as parties to a suit. The Apex Court, in its judgment in Gurmit Singh Bhatia (supra) has expounded broad legal principles governing the issue of impleadment of parties to a suit. The Court has held in para-5.[2] as under:- “5.[2] An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The 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. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a Neeta Sawant 15/27 7-WP-662-2023 necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”

20. Again in Ramesh Hirachand Kundanmal (supra), the Apex Court held as under: “14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined 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 give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the Neeta Sawant 16/27 7-WP-662-2023 action which cannot be effectually and completely settled unless he is a party. The line has been drawn on wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A v. Bank of England,(1950) 2 All E.R.611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:- The test is `May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.’

21. Thus as per the law expounded in various decisions of the Apex Court, a Court cannot invoke provisions of Order 1 Rule 10 of the Code for adding party unless there is a right to same relief against such party sought to be added relating to the controversy involved in the proceedings and that no effective decree can be passed in absence of such a party. Though parties can be added with a view to avoid multiplicity of litigation, a third party cannot be added so as to convert suit of one character into a suit of different character. Neeta Sawant 17/27 7-WP-662-2023

22. The premise on which Respondent Nos. 5 and 6 desired impleadment as Plaintiffs to the suit is their assertion that they are the real owners of the suit property. In this regard following pleadings made by Respondent Nos.[4] and 5 in their application for impleadment would be relevant; “The Plaintiff is the son of Applicants as mentioned above. It is an admitted fact by Plaintiff that the suit property has been purchased by the Applicant No.1 for Rs.17,300 and the said entire consideration has been paid by the Applicant No.1. The Plaintiff has also admitted the fact that said property has been purchased by Applicant No.1 in name of Plaintiff who was minor at that time. The Plaintiff was 11-year-old at that time. The Applicants submit that on behalf of Plaintiff the Applicant No.1 was put into physical, peaceful and vacant possession of suit property. The Applicants submit that the Applicant No.1 purchased the suit property in name of Plaintiff for the benefit of his family.”

23. Thus by seeking entry in the suit, Respondent Nos.[5] and 6 want to assert their ownership right against Petitionerplaintiff over the suit property.

24. The cause of action for filing the suit by Petitionerplaintiff, as pleaded in para-13 of the plaint, is execution of registered sale-deed by Respondent /Defendant Nos.1.[1] to 1.[5] on 30 October 2018 in favour of Respondent/Defendant Nos. 2 to 4. For this cause of action, Petitioner-plaintiff has essentially sought to challenge the sale-deed dated 30 October 2018 executed in favour of Respondent/Defendant Nos. 2 to 4 by seeking a declaration that Neeta Sawant 18/27 7-WP-662-2023 the same is not binding on him. It is in the context of this challenge to the transaction of the year 2018 in favour of Respondent/Defendant Nos.[2] to 4 that the Petitioner-plaintiff has sought a declaration that he is the owner of the suit property by virtue of the sale-deed dated 26 November 1992. Thus the entire lis in the suit is about validity of acquisition of ownership rights by Respondent/Defendant Nos.[2] to 4 by virtue of sale-deed dated 30 October 2018.

25. By seeking their impleadment in the suit, Respondent Nos. 5 and 6 now want to challenge right of the Petitioner-plaintiff as owner of the suit property by asserting that the father is the real owner as he paid the entire amount of consideration. Thus an altogether distinct cause of action is now sought to be added in the suit by seeking an entry by Respondent Nos.[5] and 6. It is not the case of Respondent Nos. 5 and 6 that the issue of validity of sale transaction dated 30 October 2018 executed in favour of Respondent/Defendant Nos. 2 to 4 cannot be determined in their absence. It is also not their contention that their presence is necessary to decide the validity of sale-deed dated 30 October 2018. The case pleaded by them in their impleadment application is altogether different. The impleadment is sought on twin premises, firstly that the father purchased the property in the name of Petitioner-plaintiff and therefore father is the real owner. Secondly, a family compromise was agreed on 25 August 2019 under which Neeta Sawant 19/27 7-WP-662-2023 Petitioner-plaintiff agreed to gift the suit property in mother’s name. It is on these grounds that impleadment was sought in the suit by Respondent Nos. 5 and 6. In my opinion, both the issues are completely foreign to the issue of validity of sale-deed dated 30 October 2018 executed in favour of Respondent/Defendant nos. 2 to 4. It therefore does not appear to me that Respondent Nos. 5 and 6 are necessary parties to the suit.

26. The Trial Court has emphasized necessity of avoiding multiplicity of litigation as a reason for impleadment of Respondent Nos. 5 and 6. True it is that the Court shall endeavor to avoid multiplicity of litigation by permitting necessary parties to be impleaded in a pending suit. However, at the same time, the objective of avoidance of multiplicity of litigation cannot result in creation of complications in a pending suit. Similarly under the guise of avoiding multiplicity of litigation, the added parties cannot be permitted to change the nature of suit.

27. In the present case, it clearly appears that entry of Respondent Nos.[5] and 6 would alter the nature of the suit by adding a facet of determination of issue about the real ownership of the suit property between Petitioner-plaintiff and Respondent Nos. 5 and 6, to which dispute Respondent Nos.[2] to 4 would be strangers. Thus original contest in the Suit between the son and subsequent purchasers would be altered to a contest between son Neeta Sawant 20/27 7-WP-662-2023 and parents. Court will have to first decide who amongst the son and parents are the real owners of suit property and only after deciding that issue, the Court can proceed to touch the main issue of validity of purchase transaction by Respondent Nos. 2 to 4. Thus entry of Respondent Nos. 5 and 6 would require the Court to adjudge an additional and independent issue about the real ownership of the suit property out of a sale transaction dated 26 November 1992. If entry of a third party forces the Court to formulate additional issue(s) independent of the issue(s) arising between the original parties to the suit, impleadment of such parties should normally be avoided. This would be especially true where the original defendants to the suit become stranger for determination of such additional issue(s).

28. In my view, therefore mere avoidance of multiplicity of litigation could not have been a reason to direct impleadment of Respondent Nos. 5 and 6 as parties to the suit as their entry not only creates complication in the suit but changes its very nature.

29. Respondents Nos. 5 and 6 desired their impleadment as Plaintiffs to the suit. Perusal of the impugned order indicates that the Trial Court has not taken this aspect into consideration. Infact the entire order does not disclose any application of mind to the prayer for impleadment as Plaintiffs. The Trial Court has proceeded to decide the application without noticing the fact that Neeta Sawant 21/27 7-WP-662-2023 the impleadment was sought by Respondent Nos.[5] and 6 as Plaintiff No.2 and Plaintiff No.3. Though the Trial Court has not allowed their entry in the suit as Plaintiffs, let us momentarily assume if Respondent Nos. 5 and 6 were to be added as Plaintiffs to the suit. If Respondent Nos. 5 and 6 are allowed to be added as Plaintiffs, there would be two sets of Plaintiffs (son and parents) seeking relief against each other about ownership of property. There is yet another interesting facet to their prayer for addition as Plaintiffs. The Petitioner-plaintiff has sought following declaration in prayer clause (b) “ch½ oknh gs fnukad 26&11&1992 jksthP;k nLr Øa- 444@1992 vUo;s fjrlj dk;nsf’kji.ks uksnafoysY;k [kjsnh[krkuqlkj ekyd >kys vkgsr vlk tkghj Bjko d#u feGkok-”

30. Prayer clause (b) to the plaint can be translated as under: (b) It can be declared that Plaintiff has become owner by virtue of sale-deed dated 26/11/1992 validly and legally registered as Deed No.444/1992.”

31. If prayer of Respondent Nos. 5 and 6 to be added as Plaintiffs Nos. 2 and 3 was to be accepted, and if the suit is to be decreed in terms of prayer clause (b), the same would result in issuance of a declaration to the effect that all of the three Plaintiffs (son as well as parents) are owners of the property. Thus without putting the question of acquisition of ownership rights in the suit property by the father by virtue of payment of consideration for Neeta Sawant 22/27 7-WP-662-2023 sale-deed dated 26 November 1992, the father will get a declaration to the effect that he has become owner of the suit property. It is not even an assertion of Respondent Nos. 5 and 6 that the mother is the owner of the suit property. Thus, addition of the mother (Respondent No.6) as Plaintiff No.3 as desired in the impleadment application would completely frustrate/complicate prayer clause (b) wherein the mother would be seeking a declaration of ownership in the suit property by virtue of sale-deed dated 26 November 1992, in absence of any assertion that she indeed acquired any ownership rights by virtue of the said sale-deed. It is thus more than apparent that entry of Respondent Nos. 5 and 6 as Plaintiffs to the suit would not only facilitate declaration in their favour as owners of the suit property without determination of such a issue by the Court, but will also complicate/frustrate the prayers in the plaint.

32. I have therefore no hesitation in holding that the order passed by the Trial Court suffers from the vice of non-application of mind in various areas. It ignores the fact that impleadment was sought by Respondent Nos.[5] and 6 as Plaintiffs to the suit. It only decides that the father is a necessary party and does not touch upon the issue whether mother is also a necessary party or not. The order directs impleadment of only one ‘party’, when infact both the ‘parties’ had sought impleadment. The order does not clarify the capacity in which Respondent Nos.[5] and 6 are to be added as parties to the suit. Additionally, the reasoning adopted by the Court Neeta Sawant 23/27 7-WP-662-2023 for allowing impleadment of Respondent Nos.[5] and 6 is completely flawed and therefore the impugned order passed by the Trial Court is unsustainable.

33. What remains now is to deal with the judgment cited by Mr. Wakankar:

(i) In Milind Dattatreya Sugavkar (supra), the suit was filed by a member of Co-operative Society challenging Notice issued by the Municipal Corporation for demolition of the unauthorised structure. Society filed an application seeking impleadment as a party defendant in the suit, which was allowed by the Trial Court. In this factual background, this Court held in para-9 of the judgment as under:

(ii) In Kashibai Waman Patil (supra), the suit was instituted by

Plaintiffs seeking a declaration of ownership and possession of Neeta Sawant 25/27 7-WP-662-2023 the property and challenged various agreements executed in respect of the suit property. Third party partnership firm filed Chamber Summons seeking impleadment on an apprehension that the Plaintiffs were likely to withdraw or abandon the suit and enter into compromise with the Defendants with regard to the suit property. This Court held that there was no lis between the Plaintiffs and the Applicants seeking impleadment in the suit. The Court held in para-18 as under:

This Court ultimately rejected the Chamber Summons for impleadment with costs. Thus, the judgment in Kashibai Waman Patil, far from assisting the case of Respondent nos. 5 and 6, actually militates against them. Neeta Sawant 26/27 7-WP-662-2023

34. After considering the entire conspectus of the case, I am of the view that the suit can be effectively decided in absence of Respondent Nos. 5 and 6. If Respondent No.5 indeed believes that he is the actual owner of the suit property, he can sue the Petitionerplaintiff independently and seek a declaration to that effect. In the event of the present Suit being compromised, the compromise decree will not be binding upon Respondent Nos. 5 and 6. They can always institute their own independent suit not only against Petitioner-plaintiff but also against other Defendants in the suit and challenge not just the 2018 sale transaction in favour of Respondent/Defendant Nos. 2 to 4 but also seek a declaration that the compromise entered into by the Petitioner-plaintiff in the present suit would not bind them. Alternatively, Respondent No.5 and 6 can claim a share in the amounts received by Petitionerplaintiff while compromising the suit after establishing themselves to be the true owners of the suit property. Thus refusal of entry to Respondent Nos. 5 and 6 in the suit instituted by Petitionerplaintiff would not render them remediless. On the contrary, their entry in the suit would change its very nature and create complications in the pending suit. The Trial Court has not considered all these aspects while passing the impugned order, which suffers from various infirmities as discussed above.

35. In the result, I find the impugned order dated 10 January 2022 passed by the Trial Court to be indefensible. The Neeta Sawant 27/27 7-WP-662-2023 Writ Petition is accordingly allowed. The order dated 10 January 2022 passed by the 7th Additional Judge, Small Causes Court and Joint Civil Judge Senior Division, Pune on application at Exhibit-62 is set aside and the application filed by Respondent Nos.[5] and 6 at Exhibit-62 stands rejected.

36. Rule is made absolute. There shall be no order as to costs.

SANDEEP V. MARNE, J.