GOPAL KRUSHNA BADU MOHAPATRA Vs. GIRISH CHANDRA NAYAK

JUDGEMENT

(1.) PETITIONERS ' application for being impleaded as parties in O.S.No. 90/211 of 1985/1977 in terms of Order 1, Rule 10 of the Code of Civil Procedure, 1 908 (in short, the 'Code') having been rejected by learned Civil Judge (Sr. Division), Puri and such rejection having been upheld by learned District Judge, Puri in Civil Revision No. 144 of 1995, this writ application has been filed.

(2.) A brief reference to the factual aspects would be necessary. One Sanjay Narayan Sanyal filed O.S.No. 211/1997 against Radheshyam Badu Mohapatra for eviction on the ground that he had been appointed as marfatdar by the descendants of Rani Hemanta Kumari Devi, who had constructed the temple and as such was permitted to stay within the temple premises. One Jayakrushna Badu Mohapatra filed petition stating that the property had been gifted to him by Rani under a 'Danapatra' dated 4.1.1 933 and prayed for being impleaded as a party, which was allowed. The suit was transferred to the Court of Additional Civil Judge (Sr. Division), Puri and was renumbered as O.S.No. 90/21 1 of 1985 -1 977. Girish Chandra Nayak and Kailash Chandra Nayak, opp. parties ) and 2 in the present writ application substituted themselves as plaintiffs in place of original plaintiff on the ground that original plaintiff executed a 'Seva Samarpana Patra' on 27.8.1981 in their favour making them marfatdars of the deity. Petitioners on the basis of a will executed by Jayakrushna Badu Mohapatra in their favour filed an application to be impleaded as defendants. The said petition was rejected on 27.7.1983, on the ground that Jayakrushna Badu Mohapatra continued to be a party to the suit and could protect the interest of petitioners. Another application was filed by petitioners which was rejected on 8.2.1985 on the ground that a will does not confer any title. Progress of the suit was stayed because of the proceeding under Orissa Estates Abolition Act, (in short, the 'Act') and the land was settled in favour of the deity. After death of Jayakrushna Badu Mohapatra, petitioners put the will to probate, and Probate Case No. 1 16/1986 was initiated. Further proceeding in Probate Case has been stayed by this Court in Civil Revision No. 49 of 1995. In the meantime according to petitioners 'Seva Samarpana Patra' on the basis of which plaintiffs (opp. parties 1 and 2 herein) claimed to be marfatdars was cancelled by a registered deed dated 18.7.1993, and another 'Seva Samarpana Patra' was executed by Sanjaya Narayan Sanyal in their favour under a registered deed dated 29.1 1.1993. On the basis of these two deeds petitioners filed an application to be impleaded as parties, but the same was rejected by the trial Court. Civil Revision No. 144 of 1995 was filed which has also been rejected.

(3.) AT this juncture, it is necessary to delineate the scope and ambit of Order 1, Rule 10 of the Code 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 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 Code 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 then that 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 : 'To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled, it is enough if we state the principle. A necessary party.is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.'