Mr. Dani, however, submitted that the petitioners, who
according to him, are admittedly the owners of the suit
property, are at least a proper parties to R.A.E. Suit No. 1148
of 2013 and therefore, were required to be impleaded as
parties to the suit. He submits that the petitioners in this case,
are entitled to contend that they do not want a decree of
eviction against their tenants on the ground of default in
payment of rent. In the alternate, the petitioners are entitled
to contend that the vacant possession of the suit premises be
restored to the petitioners than to plaintiff, who has per his
own pleadings in the plaint, claims to be only a rent collector.
15] Order 1 Rule 10(2) of the Code of Civil Procedure 1908
(CPC) entitles the Court, 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. The object of the rule is not to
change the scope or character of the suit by adding new
parties and to enable them to litigate their own independent
suit but simply to hold them to avoid unnecessary litigation
which might otherwise become necessary. The main object of
this rule is also not to prevent multiplicity of actions, even
though it may, incidentally, have that effect. The person to be
joined must be one, whose presence is necessary as a party.
When a right is claimed against him and when it is not
possible to pass an effective decree in his absence, he
becomes a necessary party. Similarly, if an adjudication is
likely to affect a party, then, ordinarily, joinder of such party is
necessary so as to effectually and completely settle the issue
between the parties and grant comprehensive relief.
16] In this case, as noted earlier, considering the nature of
the suit and the relief claimed, it cannot be said that the
petitioners were necessary parties to R.A.E. Suit No. 1148 of
2013. Mr. Dani, however, submits that the petitioners are atleast
proper parties and therefore, discretion exercised by the
Small Causes Court in ordering the petitioners' joinder was
incorrectly interfered with by the Revisional Authority.
17] Order 1 Rule 10(2) of the CPC confers a wide discretion
to the Court to meet the every case of joinder or nonjoinder
of parties. However, discretion is required to be exercised not
arbitrarily, but on judicial principles. Ordinarily, the plaintiff is
the dominus litus. However, joinder can be ordered even
against the wishes of the plaintiff, if the situation, so
demands. The power to order joinder is normally confined in
two cases:
(i) When a party ought to have been joined, but is
not joined (necessary party); and
(ii) When, without presence of such party, the
question involved in the case cannot be effectively
decided (proper party).
18] The petitioners in this case, has failed to make out a
case that they are necessary parties to R.A.E. Suit No. 1148 of
2013. The reliefs applied for in the suit are perfectly capable
of being granted or refused without presence of the
petitioners. Any relief granted or finding recorded in R.A.E.
Suit No. 1148 of 2013 cannot, affect the rights, if any, of the
petitioners to suit property, regards which, there are already
several litigations pending between the parties. In fact, the
joinder of the petitioners in R.A.E. Suit No. 1148 of 2013,
might have the effect of altering the very character of such
suit and introducing a litigative front between the plaintiff
and the petitioners in the context of their respective rights
qua the agreement dated 8th January 1984 and the irrevocable
POA. Such disputes are quite alien to proceedings in R.A.E.
Suit No. 1148 of 2013.
19] In the absence of the petitioners, it is not as if R.A.E.
Suit No. 1148 of 2013 cannot be completely or effectively
decided. The presence of the petitioners is not necessary for
determination of real matter in dispute. The presence of the
petitioners is not necessary for effectual and complete
adjudication of all the questions involved in R.A.E. Suit No.
1148 of 2013. Thus construed, it cannot be said that the
petitioners are either necessary or proper parties insofar as
R.A.E. Suit No. 1148 of 2013 is concerned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5624 OF 2017
Mr. Peter Cajetan Travasso vs. Shri. Lal Bherumal Laungani
CORAM : M. S. SONAK, J.
Dated : 10th October 2017.
Print Page
according to him, are admittedly the owners of the suit
property, are at least a proper parties to R.A.E. Suit No. 1148
of 2013 and therefore, were required to be impleaded as
parties to the suit. He submits that the petitioners in this case,
are entitled to contend that they do not want a decree of
eviction against their tenants on the ground of default in
payment of rent. In the alternate, the petitioners are entitled
to contend that the vacant possession of the suit premises be
restored to the petitioners than to plaintiff, who has per his
own pleadings in the plaint, claims to be only a rent collector.
15] Order 1 Rule 10(2) of the Code of Civil Procedure 1908
(CPC) entitles the Court, 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. The object of the rule is not to
change the scope or character of the suit by adding new
parties and to enable them to litigate their own independent
suit but simply to hold them to avoid unnecessary litigation
which might otherwise become necessary. The main object of
this rule is also not to prevent multiplicity of actions, even
though it may, incidentally, have that effect. The person to be
joined must be one, whose presence is necessary as a party.
When a right is claimed against him and when it is not
possible to pass an effective decree in his absence, he
becomes a necessary party. Similarly, if an adjudication is
likely to affect a party, then, ordinarily, joinder of such party is
necessary so as to effectually and completely settle the issue
between the parties and grant comprehensive relief.
16] In this case, as noted earlier, considering the nature of
the suit and the relief claimed, it cannot be said that the
petitioners were necessary parties to R.A.E. Suit No. 1148 of
2013. Mr. Dani, however, submits that the petitioners are atleast
proper parties and therefore, discretion exercised by the
Small Causes Court in ordering the petitioners' joinder was
incorrectly interfered with by the Revisional Authority.
17] Order 1 Rule 10(2) of the CPC confers a wide discretion
to the Court to meet the every case of joinder or nonjoinder
of parties. However, discretion is required to be exercised not
arbitrarily, but on judicial principles. Ordinarily, the plaintiff is
the dominus litus. However, joinder can be ordered even
against the wishes of the plaintiff, if the situation, so
demands. The power to order joinder is normally confined in
two cases:
(i) When a party ought to have been joined, but is
not joined (necessary party); and
(ii) When, without presence of such party, the
question involved in the case cannot be effectively
decided (proper party).
18] The petitioners in this case, has failed to make out a
case that they are necessary parties to R.A.E. Suit No. 1148 of
2013. The reliefs applied for in the suit are perfectly capable
of being granted or refused without presence of the
petitioners. Any relief granted or finding recorded in R.A.E.
Suit No. 1148 of 2013 cannot, affect the rights, if any, of the
petitioners to suit property, regards which, there are already
several litigations pending between the parties. In fact, the
joinder of the petitioners in R.A.E. Suit No. 1148 of 2013,
might have the effect of altering the very character of such
suit and introducing a litigative front between the plaintiff
and the petitioners in the context of their respective rights
qua the agreement dated 8th January 1984 and the irrevocable
POA. Such disputes are quite alien to proceedings in R.A.E.
Suit No. 1148 of 2013.
19] In the absence of the petitioners, it is not as if R.A.E.
Suit No. 1148 of 2013 cannot be completely or effectively
decided. The presence of the petitioners is not necessary for
determination of real matter in dispute. The presence of the
petitioners is not necessary for effectual and complete
adjudication of all the questions involved in R.A.E. Suit No.
1148 of 2013. Thus construed, it cannot be said that the
petitioners are either necessary or proper parties insofar as
R.A.E. Suit No. 1148 of 2013 is concerned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5624 OF 2017
Mr. Peter Cajetan Travasso vs. Shri. Lal Bherumal Laungani
CORAM : M. S. SONAK, J.
Dated : 10th October 2017.
