A.K.Banerji - (1.) THIS revision is directed against the order dated 2-12-1992 passed by the Civil Judge, Jalauu at Orai allowing the application of the opposite party no. 2 under Order 1 Rule 10 CPC and directing the plaintiff revisionist to implead the said opposite party as defendant no. 2 in original suit no. 148 of 1992.
(2.) BRIEF facts are that the plaintiff-revisionist Raghunandan filed Suit no. 148 of 1992 against the defendant opposite party no. 1 namely, Brijnandan for a declaration that the plaintiff is the exclusive owner in possession of the house in dispute. In this suit the defendant Brijnandan filed his written statement as well .as an affidavit admitting the plaintiff's ownership of the property in dispute. An application being paper no. 49 C was filed by one Virendra Singh Bhadoria (opposite party no. 2 in the present revision) for being implicated as a defendant in the said suit. In this application, which purported to be under Order 1 Rule 10 CPC, it was stated by the said applicant that he had filed suit no. 108 of 1992 against Brijnandan, who is arrayed as defendant in the present suit, for permanent injunction restraining him from transferring the disputed house in favour of any other person. In the said suit on 22-5-1992 a compromise was arrived at between the parties to the effect that the defendant Brijnandan will pay a sum of Rs. 78,000/- till 31-8-1992 to the plaintiff in full and final settlement of his claim. The said suit no. 108 of 1992 was decided on 22-5-1992 in terms of the said compromise which formed part of the decree. It was further stated by the applicant Virendra Singh that the present suit no. 148 of 1992 filed by the plaintiff Raghunandan against his brother. Brijnandan was a collusive suit and the same had been filed to defeat the decree passed in favour of the applicant in suit no. 108 of 1992 so that the applicant will not be able to execute his decree, as Brijnandan had no other property. On these allegations the applicant Virendra Singh wanted to be impleaded as defendant no. 2 in the present suit no. 148 of 1992. By order dated 2-12-1992 (he court below allowed the application filed by the opposite party no. 2 and directed the said opposite party to be impleaded as defendant no. 2 in the suit. It is this order that has been challenged before this Court in the present revision. Notice of this revision was issued to the opposite parties prior to the admission of the revision. I have heard learned counsel for the parties at the admission stage and with the consent of the parties the revision is accordingly being decided at the admission stage itself. The main submission of the learned counsel for the plaintiffs revisionist is that the plaintiff was not seeking any relief against the opposite party no. 2 and, therefore, the plaintiff could not be compelled to implead the said party as a defendant in the suit. The court below has passed the order impleading opposite party no. 2 as defendant in contravention of the requirement of Rule 10 (2) of Order 1 CPC. On the other hand, learned counsel for the opposite party no. 2 has contended that it was apparent from the facts on record that Suit no. 148 of 1992 was filed by the plaintiff- revisionist against his brother collusively to defeat the rights of the opposite party no. 2 accrued to him from the decree passed in Suit no. 108 of 1992. The said opposite party will have an interest in. the property in question as in case it was held in the collusive suit that the plaintiff was the owner of the property in question, the opposite party no. 2 will not be able to execute his decree against the defendant no. 1.
(3.) RULE 10 (2) of Order 1 CPC, inter alia, lays down that the Court may at any stage of the proceedings, either upon or without the application of any party, and on such terms as may appear to the Court to be just, order that the name of any person who ought to have joined, whether as plaintiff or defendant, or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. It is clear from the said provision that the Court has been empowered to add a party to a Suit (i) when a party ought to have joined when the Suit was originally instituted but was not so joined, (ii) the presence of the person sought to be added is necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit. It is now well settled that addition of a party under this RULE is not a question of initial jurisdiction of the Court but of judicial discretion to be exercised on judicial consideration of the facts and circumstances of a 'particular case. In the case of Ramesh Hira Chand Kundan Mai v. Municipal Corporation, Greater Bombay, 1992 (2) SCC 524, the Supreme Court has held that the question of impleadment of a party has to be decided on touchstone of Order 1 RULE 10 CPC which provides that only a necessary or a proper party may be added. 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 effectual decision on the question involved in the proceeding. Apply this text to the facts of the present case in hand, it is clear that the relief sought in the Suit no. 148 of 1992 was one of declaration that the plaintiff-revisionist is the owner of the house in suit. In other words, if it is found that the plaintiff is the sole owner of the house, he shall be entitled to the relief otherwise the Suit would be dismissed. The opposite party has sought impleadment not on the ground that he has a prima facie claim to the subject matter of litigation but only on the ground that he may be impleaded to safeguard his interest as he will be incidentally affected by the judgment and will not be able to execute the decree against the defendant no. 1 in case the plaintiff's suit is decreed. It is well settled that no person can be joined as a party to a Suit because be would be incidentally effected by the judgment. The main consideration, as envisaged in RULE 10 (2) of Order 1 CPC, is whether or not the presence of such person is necessary to enable the Court to effectually and completely adjudicate upon and settle the question involved in the Suit. Here, the question involved in the Suit is whether by means of a family settlement of the year 1985, the plaintiff became the sole owner of the property in question. For deciding this issue the presence of the opposite party no. 2 is not required and it is not possible to hold that the Suit can not proceeded effectually in the absence of the said opposite party. Learned counsel for the applicant has placed reliance upon the decision of the Orissa High Court in the case of Pranakrushna v. Umakanta Panda, AIR 1989 Orissa 148. It was held in this case, which also arose out of a declaratory Suit, that a person is not to be added as a defendant merely because he would be affected by the judgment The main consideration is whether or not the presence of such a person is necessary to enable the Court to adjudicate upon and settle the questions involved in the Suit. In somewhat similar situation like the Orissa case (Supra) Calcutta. High Court in the case of Narayan Chadra Garai v. Matri Bhandar Pvt. Limited AIR 1974 Cal. 358, held that where a party sought to be added on the ground that the party to the Suit had been injuncted and agreed to sell the land to the applicant, the latter was neither a necessary nor a proper party as the question involved in the Suit could be worked out without anyone else being brought on record. It was further held that RULE 10 can not be read as requiring a person who is said to have or claimed to have or likely to have any sort of right, title or interest in respect of the subject matter of a suit, to be made a party. A similar view has been taken by our Court in the case of Laxmi Narain v. District Judge, Fatehpur, 1991 ACJ 1245. Learned counsel for the opposite party no. 2 strenuously urged that as the present suit was a collusive one and would adversely affect the rights of the opposite party no. 2, it was necessary to implead him as a party. So far as this submission is concerned it has been held by our Court in the case of Mohd. Farooque v. District Judge, Allahabad, AIR 1993 All. 8, that where there was allegation or any cause of action against the .applicant who sought to be impleaded as a defendant in the suit the mere apprehension that the plaintiff and the defendant of the suit might collusively get their suit decided which would adversely affect the rights of the applicant, was not enough for impleadment of the applicant as a defendant in the suit. It was further held in this case that a decree or order passed by a court would not effect a person who is not a party to the suit for the proceedings. It is always open to a party to file a fresh suit for vindication of its rights. It has been held by the Supreme Court in the case of Ramesh Hirachand Kundan Mai (Supra) that the main objective of Rule 10 (2) of Order 1 CPC is not to prevent multiplicity of actions. The only reason which makes it necessary to make a person as a party to an action is that he should be bound by the result of the action and the question to be settled, which can not be effectually and completely settled unless he is a party. It is neither contemplated nor permissible to add a respondent which would result in causing serious prejudice to the plaintiff or the appellant and the substitution or addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. The joining of a party would embarass the plaintiff and the issues not jermen to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under Rule 10 (2) of Order 1 CPC in such cases.;