IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11834 of 2011 Sukhdeo Paswan Versus The State Of Bihar Through Collector, Vaishali, Hajipur. & Ors. ---------------------------------- O R D E R 00. 13.10.2011. I have heard the learned counsel, Mr. Mahesh Narayan Parvat on behalf of the petitioner and Mr. Surendra Kishore Thakur on behalf of the respondent No.7 to 10 and Mr. Md. S. Siddique, A.C. to A.A.G.IX on behalf of the original defendant- respondent. (2) The plaintiff-petitioner filed the present application under Article 227 of the Constitution of India challenging the order dated 26.05.2011 as contained in Annexure 3 passed by Civil Judge Ist (Sr. Division) Hajipur in Title Suit No.263 of 2003 whereby the learned Court below allowed the application filed by the interveners-respondents 3rd set under Order 1 Rule 10 of the Code of Civil Procedure and impleaded them as defendants in the suit. (3) The learned counsel for the petitioner submitted that the plaintiff cannot force to fight litigation against a person against whom he has not claimed any relief. The interveners- respondent are neither necessary party nor proper party in the present suit but the learned Court below has allowed their application and, thereby exercised the jurisdiction arbitrarily. According to the learned counsel, the said respondents are not claiming title or interest in the suit property rather they are claiming their easementary right and, therefore, their right cannot be decided in the present suit. - 2 - (4) On the other hand, the learned counsel for the intervener-respondent submitted that the learned Court below has exercised the jurisdiction judiciously and the learned Court below found that the interveners are proper party and, therefore, allowed their application. In such circumstances in exercise of supervisory jurisdiction, this Court will refrain from interfering with the impugned order which has been passed in exercise of judicial discretion. (5) It appears that the plaintiff-petitioner with others filed Title Suit No.263 of 2003 praying for declaration of their title over Schedule I property alleging that the said property is part of old plot No.297 and 925 which are in possession of the plaintiffs and the same has wrongly been recorded in the revisional record of right in the name of defendants, i.e., respondent 1st set. The plaintiff further prayed for restraining the defendants by issuance of permanent injunction from interfering in peaceful possession of plaintiff and from making any construction over the disputed land. The interveners- respondent 3rd set filed the application under Order 1 Rule 10 (2) on 15.03.2010 praying for their addition as defendant on the ground that their houses are adjacent east of Municipal road and the plaintiff is raising claim over the road. It is stated that the plaintiff has filed the suit with an intention to close the road. From perusal of the impugned order, it appears that the learned Court below found that the intervener had only way which is being used by them for going to their house. The learned Court below also observed that they are not claiming title on the - 3 - disputed land of the plaintiff. Because, that is the way which is being used by the intervener, they are necessary party. (6) Admittedly, in this case, the plaintiff filed the suit for declaration as stated above. The plaintiff has prayed for declaration of title and correction of record of right. According to the Court below also, the interveners are not claiming any title on the suit property. In absence of the said interveners, it cannot be said that the Court will be unable to decide the suit or grant the relief in favour of the plaintiff. The claim of the intervener is outside the purview of the plaintiff’s case. They are claiming easementary right. Whether they have got easementary right or not is a separate issue. Without their being any evidence on the basis of application only, the Court below found that they are using the road since before and found that they have got easementary right. It is also admitted that the suit property is recorded in the survey record in the name of Municipality. (7) In such view of the matter, it cannot be said that interveners are either necessary party or proper party in the present suit. Only because they are claiming easementary right as a matter of right, they cannot be added as a party. (8) It is well settled principle of law that plaintiff is dominus litis. Order 1 Rule 10 (2) C.P.C., does not speak about the right of a non-party to be impleaded as a party, but it speaks about the judicial discretion of the Court to strike out or to add parties at any stage of a proceeding. The discretion under the said Rule can be exercised either suo motu or on the application - 4 - of the plaintiff or the defendant or an application of a person who is not a party to the suit. In exercising of its judicial discretion, the Court will, of course, act according to reason and fare play and not according to the whims and caprice. This “discretion” means sound discretion guided by law, it must be governed by rule and not by humour, it must not be arbitrary, vague and fanciful but legal and regular. (9) Here, in the present case, the plaintiff is opposing to the adding of the interveners, therefore, the Court below should have considered the fact that the plaintiff cannot be compelled to fight with a person against whom he is not praying any relief. The Court below should have found that as to whether in absence of the interveners, the plaintiff was entitled for the relief claimed by him or not. If it is found that plaintiff cannot be granted the relief which he claimed in absence of the intervener in such circumstances, the intervener is necessary party. (10) In 2010 (7) Supreme Court cases 417 Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels (P) Ltd. and Ors, the Apex Court has held at paragraph 24.3 as follows : “24.3 – If a person makes an application for being impleaded contending that he is a necessary party, and if the Court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the Court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.” (11) As has been stated above, the claim of the intervener cannot be enquired in the present suit. There is no finding recorded by the Court below that in absence of the - 5 - interveners, the relief claimed by the plaintiff cannot be granted in his favour. On the other hand, the nature of claim stated by the intervener appears to be not entertainable and is not related to the claim of the plaintiff. (12) It has been held by the Apex Court in the above decision that a “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who though not a necessary party is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If person is neither proper nor necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. (13) In view of the facts and circumstances of the case, it appears that the learned Court below without considering these aspects of the matter on the mere application filed by the interveners allowed the same. In my opinion, therefore, the order passed by the Court below is unsustainable in the eye of law. Accordingly, this writ application is allowed and the impugned order is set aside. The application filed by the interveners-respondents is rejected. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 13thday of October, 2011 Sanjeev/A.F.R.