Seth, J. - (1.) The appellants made an application under Order 1 Rule 8 sub-rule (3) of the Code of Civil Procedure (C.P.C.) for being added as party to the suit on the ground that they are parties interested. The Notice of Motion indicated that they have wanted to be parties as defendants whereas in the application the prayer is only for being added as party to this suit. The affidavit in respect of the application does not disclose in what capacity the appellants intended to intervene. 1.1. Admittedly, leave under Order 1 Rule 8 was granted and the notice was published on 30th April, 2004 and 4th May, 2004. The application was affirmed on 9th July, 2004 and was filed on 13th July, 2004 namely, after the expiry of the period mentioned in the notice under Order 1 Rule 8 so published. 1.2. The learned Single Judge in its order dated 27th September, 2004 referred to the decisions in the case of Vassonji Tricumjiv. Esmailbhai Shivji & Ors., ILR 34 Bombay 420; T.G.Jog v. Muir Mills Limited, ILR (1953)2 Cal 171; Batokristo Nandy v. Ranadeb Chowdhury, ILR (1972)2 Cal 480 and Balaram Palai & Ors. v. Collector, Puri & Ors., AIR 1994 Orissa 21 which in turn relied on the decision in the case of Chairman, Tamil Nadu Housing Board v. T.N.Ganapathy, AIR 1990 SC 642 and observed that the scope of the application for being added as party in a suit where leave under Order 1 Rule 8 was granted after the expiry of the period of notice was limited and that one could be added as a party only when it was established that his interest was not being properly represented in the suit and that it would be prejudicially affected by the conduct of the suit by the parties thereto and that it is discretionary on the part of the Court to add a person applying for addition under Order 1 Rule 8 of the Code of Civil Procedure. It is to be dealt with due care and circumspection and it is never a matter of course. 1.3. The learned Single Judge found that no reason was assigned as to why the applicants could not come within the time indicated in the notice. The only allegation was that the applicants were the owners and the occupiers of the building and, as such, they were vitally interested in the subject matter of the suit and the reliefs claimed therein. They had not stated that the conduct of the suit was not in proper hands or that their interests were prejudicially affected. It was suggested in course of hearing that near relations of some of the applicants were already on record as parties to the suit. In these circumstances, the application was rejected with the clarification that the said order of rejection would not prevent the petitioners to apply for their addition in future if they can show good grounds that their interests are being injured in any way. 1.4. Against this order the present appeal is preferred.
(2.) Mr. S.B.Mookherjee, the learned Senior Counsel, relied on the decision in the case of Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 (para 13) and contended that direct interest in the property is sufficient to enable a person to be added as a party to a suit. He further relied on the decision in the case of Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi, AIR 1958 SC 394 (para 9) and contended that if a party becomes bound by a decree in respect of a property in which he is vitally interested he is entitled to be added. He relied on the decision in the case of Chairman, Tamil Nadu Housing Board v. T.N.Ganapathy (supra) (para 7 to 9) in support of his contention that a person should be added as a party to avoid multiplicity of the litigation if the parties have same interest or common grievance and it is not necessary that the cause of action should be the same. Relying upon the decision in the case of Batokristo Nandyv. Ranadeb Chowdhury, (supra), Mr. Mookherjee contended that the added defendant may file Written Statement or adopt the Written Statement or raise new plea or if one is added as plaintiff he has to adopt the plaint or ask for amendment if he wants to raise new plea in order to impress upon the Court that by reason of the interest of the appellant, it was necessary to add them parties for the purpose of protecting their interests, which are in dispute. He relied on a decision in the case of T.G.Jog v. Muir Mills Ltd. (supra) (pages 173, 174 and 176) and contended that a co-plaintiff seeking enlargement of the scope of the suit cannot be added but the said principle will not preclude a person from protecting his own interest since the decree passed would bind him. Mr. Mookherjee also distinguished the decision in the case of Balaram Pa/a; v. Collector, Puri, (supra) (para 13). According to him, the scope of Order 1 Rule 8 cannot be put into straight jacket formula on the principle that the parties are acting prejudicially to the interest of the party. The discretion has to be exercised judicially. He submits that the principle of prejudice is one of the factors but not the only factor. Therefore, the learned Single Judge confined his attention only to a particular factor leaving aside other factors when no straight jacket formula has been laid down and it is let at the discretion of the Court, which is required to exercise its discretion judicially. The delay would not be a matter, which can stand in between, if the case of interest is made out. 2.1 Mr. A. K. Gandhi, the learned Counsel appearing on behalf of the respondent Nos. 2, 15 to 30, supports Mr. Mookherjee and adopts his submission.
(3.) Mr. Pratap Chatterjee, the learned Senior Counsel, opposed this prayer on the ground of maintainability of the appeal. According to him, the appeal is not maintainable under Clause 15 of the Letters Patent since it is not a judgment within the meaning thereof, inasmuch as, no right has since been finally determined. According to him, right to apply to add as a party in future has been kept open. He relied on the decision in the case of Bibijan Bibi v. Abdul Jabbar Daftary, AIR 1917 Cal 627 where in a case arising out of an order passed by the learned District Judge on an application under Order 1 Rule 10, the Court held that no right was determined. Mr. Chatterjee points out that the parties are related to some or the other of the respondents or the defendants. He pointed out with reference to page 55 that the applicant No. 1 in the serial is a company. The applicant No. 3 is the wife of defendant No. 1; the applicant No. 4 is the brother of the defendant No.1; the applicant No. 5 is a company of respondent No. 2; the applicant No. 8, a company is controlled by respondent No. 20; the applicant No. 9 is the son of defendant No. 15. Therefore, it cannot be said that their interests are being prejudicially affected and would not be looked after by their relations or other related persons. He pointed out that applications were coming in driblets one after the other for being added as a party which was initially allowed by consent, but ultimately the proceedings of the suit was being delayed by reason of filing of such application in waves. According to him, there is distinction between the scope of being added as party under Order 1 Rule 8 and under Order 1 Rule 10. In a case where leave under Order 1 Rule 8 is granted, one cannot be added as party as of right until it is established that the suit is not in safe hands without which he cannot ask for being added. He refers to the decisions relied upon by the learned Single Judge and contends that the law is well settled.;