SETABI DEI Vs. RAMDHANI SHAW

JUDGEMENT

(1.) A very interesting point of law has been canvassed in this case. The point is whether the Court has the power to add a party against whom the suit was dismissed by a previous order under Order IX Rule 5 of the Code of Civil Procedure. The point is not covered by any authority and is a point of first impression. Able arguments have been advanced from the Bar and I am grateful to the learned counsel who participated in the debate.

(2.) The facts leading to this application may now be stated. This is a suit for partition of a Mitakshara coparcenary. All the members have been impleaded as parties. The suit was Instituted on February 9, 1955, and though a decade is past, the suit has not made progress. One Chotelal, who was a minor at the date of the institution of the suit, on attainment of majority made an application on September 8, 1959, inter alia, for an order that the suit be dismissed under Order IX Rule 5 of the Code of Civil Procedure. On November 25, 1959 A.N. Ray, J. made an order on the said application dismissing the suit. In his judgment, Ray, J., recorded a finding that having regard to the fact that the plaintiff had remarried she had forfeited whatever interest she had in the coparcenary property after such remarriage. Against this order an appeal was taken. The appeal court set aside the finding that the plaintiff had forfeited her interest and also the order of dismissal of the entire suit. The view of the Court of Appeal is, that on the application, the suit was liable to be dismissed as against defendant Chotelal alone and it passed an order accordingly. This suit being a partition suit in which Chotelal is a necessary party, the plaintiff is now making this application substantially for two orders: First, the plaint be amended as indicated in the red ink in the copy plaint annexed to the petition. It appears from the copy so annexed that the plaintiff would like to recast the plaint on the footing that only the 5 branches of Ramabatar be represented by the respective kartas so that all others may be unnecessary parties. In that event, the suit when so amended may go on in the absence of Choteylal. Mr. Somnath Chatterjee learned counsel appearing in support of this application did not however press this point. Mr. Chatterjee, however, very forcefully argued that the second prayer which is the alternative prayer should be granted. This second prayer is for an order that Chotelal as against whom the suit has been dismissed as indicated above, should be added as a party defendant to this action. He purports to make the application under Order I Rule 10(2) of the Code of Civil Procedure. It is contended by learned counsel appearing to oppose this application that firstly the Court has no longer the power to add Choteylal as a party and secondly, even if the Court has power to do it, in the facts of this case the Court should not do it. Order 1 Rule 10(2) reads as follows:

(3.) When the court in exercise of the power under Order 1 Rule 10(2) strikes out a party under the first part of the sub-rule on the ground that he has been improperly joined, no second application would lie to add him as a party. The reason is that in the first application there has been an adjudication by the court that the party has been improperly joined. To add the same person as a party formerly held to be an unnecessary party would amount to a reversal of the previous decision. It may be hit by the principles analogous to res judicata. When, however, a suit is dismissed under Order 9 Rule 5 a different consideration arises. The court does no adjudication whatsoever except this that summons has not been served. Order 9 Rule 5 expressly reserves the right of the plaintiff to institute a separate suit. Therefore, there is no scope for the application of the principles of res judicata. In adding him as party, the court is not called upon to decide whether the previous adjudication was wrong. The court accepts the previous adjudication as good and proper and then is called upon to exercise its power under Order 1 Rule 10(2) and add him as party if it is satisfied that the suit should proceed and without adding him as a party the questions raised in the suit cannot be finally and fully determined.