The court has the jurisdiction to add a party to a suit under Order 1 Rule 10(2) of the Civil Procedure Code, 1908, only if the presence of the person sought to be added is necessary for the effective and complete adjudication of the suit.

1. By this application some of the defendants have challenged the order of the court below for addition of an intervenor defendant in the following circumstances.

2. A title suit has been filed by opposite party no. 2 for restraining the other defendants including the Patna Municipal Corporation from demolishing a part of the house which is in his occupation as a monthly tenant. On the 28th November, 1975 an application was filed by Murli Manohar Jalan, opposite party no. 1 for his addition as a party defendant. Copy of this petition was served admittedly only on the plaintiffs and not on the contesting defendants. When this petition was taken up the plaintiff did not oppose the prayer for addition of Murli Manohar Jalan and the learned Subordinate Judge without assigning any other reason and on the sole ground that the plaintiffs did not oppose the prayer of opposite party no. 1, ordered for his addition as defendant no. 5 in the suit. In the order it has been, however, stated that the lawyers appearing for defendants nos. 1 and 2 were also heard. This fact has been controverted in paragraph 8 of the revision petition and it has been stated that the petition for addition of party was not heard in presence of the petitioners. Although a counter-affidavit has been filed on behalf of opposite party no. 2, this assertion of the petitioners has not been controverted.

3. Be that as it may, the order cannot be sustained on a more firm ground. The provision for addition of party is contained in R. 10 of O. 1 and sub-rule (2) empowers the court "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 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" to be added.

This provision requires the court to add a party not only as a matter of course but on the given conditions whether the presence of the person sought to be added is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the suit. This finding is a condition precedent for exercising the jurisdiction by a Court for addition of a party. The order, therefore, suffers from this lacuna and cannot be maintained.

4. Mr. S. C. Ghose appearing for opposite party no 2, however, contended that the plaintiff being dominus litus it was upon him to choose any party to be added in a proceeding which has been left out by him at the time of filing of the suit and that if the plaintiff did not choose to oppose the application the court below cannot be called upon to enter into the question and record a finding as required by sub-rule (2) of R. 10 of O.1 as already indicated above. He placed reliance upon a decision in Motiram Roshanlal Coal Co. (P) Ltd. V/s. District Committee, Dhanbad, (AIR 1962 Pat 357).

5. In my opinion the contention of Mr. Ghose is erroneous and the reliance placed upon the decision is entirely misplaced. In the case cited by Mr. Ghose a petition was filed on behalf of the defendant for being added as a party and the same was strongly opposed by the plaintiff. Raj Kishore Prasad J. (as he then was) clearly laid down that there were only two cases in which a person may be added as a party to a suit under sub-rule (2) of R.10 of O.1, namely:-

(1) when he ought to have been joined as plaintiff or defendant, and is not so joined, or

(2) when without his presence the questions in the suit cannot be completely decided.

It was clearly observed in this case that if either of the two conditions is not established in a case, the court has no jurisdiction to add a party. It is in this background that an observation was made that on a proper construction of O. 1 R. 10 (2) a plaintiff cannot be compelled to ad