PISHU VASWANI Vs. KISHAN CHAND VASWAMI AND ORS.

JUDGEMENT

(1.) THE petitioner herein, namely, Smt. Radha K Vaswani, instituted, as plaintiff, Title Suit No. 5(H) 2001 against the opposite party Nos. 1 to 5 herein, as defendants, in the Court of the Assistant District Judge, Shillong, for, inter alia, declaration, partition and other consequential reliefs in respect of the properties mentioned in the Schedules to the plaint. The properties, in respect of which the reliefs were so sought for, included the landed property mentioned in Schedule 'D' to the plaint, which stands, admittedly, in the name of opposite party No. 6, namely, Smt. Radha K Vaswani. The opposite party No. 6 was, however, not made a party to the suit. On realising this error, the petitioner herein, as plaintiff, made, under Order 1, Sub -rule (2) and Sub -rule (4) of Rule 10 thereof read with section 151 of the Code of Civil Procedure, an application praying for allowing him to implead opposite party No. 6 herein, as defendant, in the suit as well as in the miscellaneous cases arising therefrom, namely, learned senior counsel. Case No. 3(H) of 2001 and Misc. Case No. 5(H)of 2001, on the ground that the opposite party No. 6 was a necessary party to the suit. In his said petition, the petitioner, however, mentioned that even if the opposite party No. 6 was not impleaded as a defendant to the said suit, the suit was not likely to fail or be defeated. The learned Court below, after giving notice of the said petition to the opposite party No. 6 (who was sought to be impleaded as a defendant) and also to the parties, who already stood impleaded as defendants, heard the said petition and passed an order, on 17.06.2002, rejecting the prayer of the plaintiff -petitioner and refused to allow thereby the opposite party No. 6 to be impleaded as a defendant to the suit. Aggrieved by this order, the plaintiff has, now, impugned the order, dated 17.06.2002, aforementioned in the present revision.

(2.) I have heard Mr. D.K. Mishra, learned senior counsel, assisted by Mrs. P.D.B. Baruah, learned counsel, for the petitioner, Mr. S.P. Mahanta, learned counsel for the opposite party Nos. 1 to 5 and Mr. B. Bhattacharjee, learned counsel for the opposite party No. 6. It is trite that if an effective decree cannot be passed in the absence of a particular party against whom a right to obtain some relief in respect of the subject -matter involved in a suit exists, such a party shall be regarded as a necessary party. Reference may be made, in this regard, to Deputy Commissioner, Hardoi v. : AIR1953SC521 , wherein the Apex Court has, while referring to a decision of Allahabad High Court, laid down as to who can be regarded as a necessary party in a civil suit. The relevant observations of the Apex Court are as follows:

(3.) THUS , in Rama Krishna Narain (supra), two tests have been laid down for determining the question as to who can be regarded as a necessary party in a civil suit, the tests being (i) that there must be a right to some relief against such a party in respect of the matter involved in the suit or the proceedings, in question, and (ii) that it should not be possible to pass an effective decree in the absence of such party.