Order 1 Rule 10 of Civil Procedure Code, 1908

Suit in the Name of wrong plaintiff

The general rule in regard to prosecution of parties is that the plaintiff in a suit, be dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.

Consequently a, person who is not a party has no right to be prosecuted against the wishes of the of the Plaintiff, But this general rule is subject to the Provisions of Order 1 Rule 10(2) of the Code of Civil Procedure, 1908, which provides for dominus litis of proper or necessary parties Suit in the Name of wrong plaintiff

Rule 10 of CPC, 1908

Code of Civil Procedure

Court by Order may strike out or add Parties

1. The court may at any stage of the proceedings,

a. either upon or

b. without the application of either party,

c. 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.”

2. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party:

a. any person who ought to have been joined as plaintiff or defendant, but not added; or

b. any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

Necessary Party

1. 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.

2. 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.

3. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.

4. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

Baluram vs Chellathangam

1. Supreme Court in Baluram vs Chellathangam stated the provisions of Order 1 Rule 10 which provide the dominus litis of proper or necessary parties.

2. A Case was filed in the Court of District Judge, Kanyakumari, is that K. Jagathees and R. Subbaram Babu, acting as trustees of “Subbaiah Paniker Family Welfare Trust” entered into the agreement dated 9th December, 2003 to sell the suit property in favour of the Jayachandra Reddy & Smt.Bharathi.

3. The price of the property was settled at Rs.22,000/- per cent. A sum of Rs.1 lakh was received as advance. They claimed to be owners of the entire property.

4. Beluram filed an application under order 1 rule 10(2) of the CPC contending that they are the co owners of the property.

5. The application was opposed by Subbaram Babu submitting that the Baluram was a stranger to the agreement and was not a necessary or proper party.

6. The trial Court accepted the application.It held that Baluram was not a stranger to the subject matter of dispute and was entitled to be impleaded as a party.

7. the trial court observed “Every member who is having interest and right should be given an opportunity of being heard and the court must see whether subject matter could be factually adjudicated upon in the absence of proposed parties in a case where the property belonged to YMCA, a public Trust.”

8. Aggrieved by the Order of the trial Court, the Jayachandra Reddy preferred a revision petition under Article 227 of the Constitution before the High Court with the plea that the Baluram was not a necessary or proper party and thus the order of the trial Court impleading him as a party defendant was erroneous.

9. The High Court upheld the plea of Jayachandra Reddy and dismissed the plea filed by the Baluram in the suit filed by the Jayachandra Reddy. It was further observed that since suit property is a Trust property, the trial Court can look into the relevant provisions of law and examine whether permission of the Court was required before entering into the sale agreement.

10.Aggrieved by the Order of the High Court, Baluram approached Supreme Court. Supreme Court held that after due consideration of the rival submissions, we are of the view that the High Court erred in interfering with the order of the trial Court impleading Baluram as a party defendant. Admittedly, Baluram is a beneficiary of the Trust and under the provisions of the Trusts Act, the Trustee has to act reasonably in exercise of his right of alienation under the terms of the trust deed.

11.The Supreme Court further said that Baluram cannot thus be treated as a stranger. Order I Rule 10(2), CPC enables, the Court to add a necessary or proper party so as to “effectually and completely adjudicate upon and settle all the questions involved in the suit”.

12.The Supreme Court further explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC.

13.This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.

14.Supreme Court futher explained the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding.

15.The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined.

16.The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose.

17.In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”

18.The Supreme Court observed that in the present case, the Baluram could not be held to be a stranger being beneficiary of the Trust property. The trial Court was justified in impleading him as a party. The High Court erred in interfering with the order of the trial Court.

19. Accordingly,Supreme Court allowed the appeal, set aside the impugned order of the High Court and restore that of the trial Court dated 10th August, 2010, impleading the Baluram as a party defendant in the suit.

Dominus Litis

1. Dominus litis is the person to whom a suit belongs. This also means master of a suit. The person has real interest in the decision of a case. It is this person who will be affected by the decision in a case. This person derives benefits if the judgment is in favor, or suffers the consequences of an adverse decision.

2. A person can be dominus litis even if his/her name does not appear in a case proceedings as a petitioner or defendant. This person will be liable for the expenses incurred if the person under cover of whom this person was litigating defaults in the payment.

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