impleadment prior to disposal of suit

[Mohd Ashraf]

Application for impleadment has been given in a suit but without disposing the same the suit was decided on merit, is it, correct?

[Dr. Ashok Dhamija]

Order 1 Rule 10(2) of the Civil Procedure Code (CPC) deals with the power of the court to strike out or add parties at any stage of the proceedings:

“(2) Court may strike out or add parties.— The Court may at any stage of the proceedings, either upon or without the application of either party, 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.”

In the case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417, the Supreme Court held as under:

“The general rule in regard to impleadment of parties is that the plaintiff in a suit, being 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 impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties.”

“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.”

“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 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. 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.”

In the case of Pratap Singh v. Rahul Gupta, (2013) 135 DRJ 330 (Del) : (2013) 199 DLT 78 (Del), Delhi High Court held that a wide discretion has been conferred on the Court in order to decide whether to strike off any party from the suit, who has been indecorously joined either as a plaintiff or defendant or to include the name of any person, whose presence is found to be necessary by the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. The Court further held that the discretion to be exercised by the Court not quixotically but based on sound judicial principles of law after taking into consideration the facts of the case. The effectual and complete adjudication and settlement of all the questions involved in the suit is the primary test to decide as to whether the impleadment of any party to a suit is required or not. Delhi High Court further held that the Court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he so wishes.

As far as my understanding goes, it is desirable that the impleadment application should be decided before deciding the civil suit on merits. In particular, if the person filing the impleadment application is a necessary party or a proper party, then it should be necessary to first decide such application before deciding the civil suit. But, if the impleadment application has been filed by a person who is not a necessary party or a proper party (or if he is a complete stranger), then, perhaps, the situation may be slightly different.

In your case, if the impleadment application has been filed by a necessary or proper party, then, in my considered opinion, the court should have decided such application before deciding the civil suit on merits.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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