PARAMANANDA BAUG Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER passed by the learned District Judge, Balasore in Munsif Appeal No. 12 of 1993 on 15.2.1997 is under challenge in this application. By the said order two applications, one filed under Order 6, Rule 17 and the other under Order 1, Rule 10 of the Code of Civil Procedure, 1908 (in short, 'CPC') were disposed of. Case at hand relates to the order passed in respect of the application under Order 1, Rule 10, CPC filed by opp. party Nos. 3 to 6. It is to be noted that the Original Suit No. 719 of 1989 -I was filed by petitioner as plaintiff in the Court of Civil Judge (Junior Division), Balasore for a declaration that the orders passed in O.L.R. Revision Case Nos. 77 of 1987 and 84 of 1987 by Member, Board of Revenue on 24.8.1989 were illegal, without jurisdiction, void and inoperative and the same were not binding on him. Further prayer was for declaration of right, title and interest in respect of the suit land. Prayer was also made for restraining the defendants, i.e., the State of Orissa represented through the Collector, Balasore and the Tahasildar, Basta permanently from interfering with possession in respect of the suit land measuring Ac. 0.28 1/2 decimals. As the suit was dismissed by judgment and decree dated 11.1.1993 and 23.1.1993 respectively, Munsif Appeal No. 12 of 1997 was filed in the Court of District Judge, Balasore. An application was filed by opp. party Nos. 3 to 6 purportedly under Order 1, Rule 10, CPC with a prayer to implead them as respondents in the appeal. Detailed objection was filed by petitioner stating that they were not either necessary or proper parties and the belated attempt to be impleaded was intended to linger the proceedings.

(2.) THE learned District Judge disposed of the appeal with the following observations so far as the application under Order 1, Rule 10, CPC is concerned.

(3.) AT this juncture, it is necessary to delineate the scope and ambit of Order 1, Rule 10 of the CPC and true purport of the provision. The object of Order 1, Rule 10 is not to change the scope and character of the suit by adding new parties or to enable them to litigate their own independent claims, but simply to help them to avoid litigation which might otherwise become necessary. There may arise cases where the Court feels that in spite of the opposition of the plaintiff, it is necessary to add a person as defendant since in the absence of that person it finds itself helpless and unable to effectively and completely settle the matter in controversy and that its failure to do so will lead to multiplicity of proceedings. The balance has, therefore, to be struck by the Court in each case by making a sound judicial approach and where it fails to do so, there is scope for interference. It is to be noted that the law is well -settled that the plaintiff is the dominus litis and as a result, therefore, no person should be impleaded as a party to the suit whom the plaintiff opposes. But at the same time it cannot be lost sight of that Order 1, Rule 10, Sub -rule (2) is meant to give every person an opportunity of being heard whose rights might be affected by the ultimate decree. A bare reading of Order 1, Rule 10 (2) of the CPC shows that the Court has power to direct a person to be made a party to the suit if such a person is a necessary party or that the Court feels the necessity of impleading him with a view to adjudicate upon all the questions involved in the suit. The question involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party. In short the Court has to determine if such a person ought to have been joined as party. In other words, Court has to determine whether such a person is a necessary party without whose presence no relief can be granted to the plaintiff or the defendant. In the alternative the Court has to determine whether the presence of any such person was necessary to decide the disputes between the parties to the suit. In other words, it would mean that if a person was a necessary party the Court must order for the addition of that person as party to the suit. In case such a party was only a proper party can be added if the Court holds that to decide dispute between the parties, his presence was necessary. The object of the rule is to enable the Court to try and determine, once for all, material questions common to the parties and to third parties and not merely the questions between the parties to the suit. Two tests for determining the question who is a necessary party to a proceeding are, firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and secondly, it should not be possible to pass an effective decree in the absence of such a party. Sub -rule (2) covers two types of cases : (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. The former is called a necessary party and the latter a proper party. Sub -rule (2) of Order 1, Rule 10, therefore, is attracted when the question is covered by one of the above. [See Kanhu Gauda v. D. Kodandi Dora : 60 (1985) CLT 453)]. The Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar : AIR 1963 SC 786 observed as follows :