TATIA, J. - (1.) HEARD learned counsel for the petitioner. Perused the impugned order by which the trial court allowed the application under Order 1 Rule 10 CPC of the applicants and impleaded the applicants as defendant in the suit.
(2.) ACCORDING to learned counsel for the petitioner the applications failed to even submit that they are effected parties and there is no reason for impleading these applicants as defendant in the suit of the plaintiff. Since plaintiff is dominus litus and, therefore, he cannot be compelled to contest the suit against the defendant who are now impleaded as party under Order 1 Rule 10 CPC. ACCORDING to learned counsel for the petitioner the petitioner-plaintiff has not sought any relief against the applicants-non-petitioners and no right of the applicants will be effected by the decision of the suit of the plaintiff. The plaintiff has sought relief against only the State with respect to his own irrigation facilities. Therefore, neither the applicants are necessary parties nor they are proper parties and the plaintiff cannot be compelled to contest the suit against these persons. Therefore, the trial court without examining these aspects of the matter wrongly impleaded the applicants as party. Learned counsel for the petitioner relied upon the judgment of this court delivered in : Girdhari lal vs. Nagar Parishad & Anr. (1), wherein it was held that applicant was neither necessary nor proper party and no relief was claimed in the plaint against the applicant in suit for perpetual injunction filed against Municipality. In this case it was observed by this court that the applicant wanted to be impleaded as party to suit merely because he feels that he will be in position to defend the suit in better manner than the Municipality itself. Upon which this court held that this will occasion a failure of justice and will cause irreparable injury to the plaintiff. Another judgment relief upon by learned counsel for the petitioner is delivered in : Sumat Kumar Jain & Ors. vs. Pramod Kumar Agarwal & Anr. (2), in which it was held by this court that the plaintiff being dominus litus cannot be compelled to fight against some other litigants not of his own choice. Learned counsel for the petitioner further relied upon another judgment of the Hon'ble Apex Court delivered in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater. The Apex Court in the above cited case observed that a necessary party is one without whom no order can be made effectively. A proper party is one is whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding and, thereafter, the Hon'ble Apex Court observed that the addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The Hon'ble Apex Court, thereafter, observed "what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witnesses. It is not merely that he has an interest in the correct solution of some question involved and has though of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i. e, he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. " On the basis of the above submissions if facts of this case are to be looked into then it comes from the application of the applicants that applicants stated that the plaintiffs have filed the present suit for injunction with respect to the irrigation facilities by which the distributors from which applicants are receiving the irrigation facilities will be materially effected and to determine this point their presence is necessary and they are necessary parties. In the present civil original suit the State was impleaded as party who is controlling and providing the irrigation facilities only and the benefit of the irrigation of the water is being enjoyed by the cultivators for their block and for enjoyment of their agricultural field. It can be presumed that if the action with respect to the irrigation facility may in the form in bringing or may in the form of seeking a direction to have irrigation facility in a particular way, naturally effect will be on the system of irrigation and it may effect the cultivators particularly and, therefore, it cannot be said that by any order or decree other cultivators will never be effected. To see whether the cultivators who are claiming that they will be effected, they are naturally necessary parties for determination of at least this point that whether because of the relief sought by the plaintiff, the applicants will be effected party or not.
(3.) THIS Court has decided the above case of RLR 1987 (II) page 462 and specifically observed that the person who is seeking permission to be impleaded as party in the suit merely because he feels that he will be in position to defend the suit in better manner then he cannot be impleaded as party. THIS reasoning itself shows that there was lack of interest of the party better position to defend the suit of the plaintiff and, therefore, it was held that he cannot be impleaded as party. In judgment of this court reported in RLW 1998 (3) Raj. 1661 it was held by this court that plaintiff is dominus litus and cannot be compelled to fight against some other litigants not of his own choice. The above decision was given by this court in a suit against the Municipal Corporation in which the relief was sought against the Municipal corporation that the Municipal Corporation should not dispossess the plaintiff without due process of law and, therefore, that was a suit for mere injunction seeking a relief against only defendant and when the Municipal Corporation passed the order dt. 6th Sept. , 1995 for removing the encroachment from the public footpath then in the peculiar facts of this case it was observed that the plaintiff is dominus litus cannot be compelled to fight against some other litigants not of his own choice. If the plaintiff in any case cannot be compelled to fight the case against the litigants to his own choice then the meaning of the order 1 rule 10 CPC will stand nugatory and no one can be permitted to be impleaded in the suit even when the party is necessary party and even if the party is seriously and adversely effected by the order or the decree passed in the suit. Therefore, the above proposition is not applicable in all cases and, that too, bereft of the case because that will go contrary to even judgments relied upon by the learned counsel for the petitioner himself reported in 1992 (2) SCC 524, which also nowhere puts the complete ban over impleading the party in the suit. The Hon'ble Apex Court held that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved and, thereafter, the Hon'ble Apex Court held that respondent No. 2 was not a necessary or a proper party and, therefore, the court below committed illegality in impleading respondent No. 2 as party. The Hon'ble Apex Court has also not held that respondent No. 2 cannot be impleaded against wishes of the plaintiff. ;