The judicial discretion of the court to strike out or add parties at any stage of a proceeding under Order 1 Rule 10(2) CPC, acting according to reason and fair play.

JAYANT NATH, J.

1. The present appeal is filed under the Delhi High Court (Original Side) Rules 1967 challenging the order dated 19.07.2013 of the Joint Registrar whereby the application of the appellant/defendant No.3 i.e. I.A. No. 15368/2013 under Order 1 Rule 10 CPC for being deleted as party was dismissed.

2. The plaintiff has filed the present suit for declaration, recovery and injunction. Plaintiff No.1 is the mother of plaintiffs No. 2 and 3. The son of plaintiff No.1 late Sh. Akash Chittranshi who was lawyer by profession, was living in New Delhi. He died at a very young age on account of massive OA101/2013 in CS(OS) 978/2011 heart attack. The controversy revolves around his estate. It is stated that there are only two Class 1 legal heirs, namely, plaintiff No.1 the mother and the minor daughter who is living with the divorced wife of said deceased son. It is averred in the plaint that on account of the acts and advise of defendants, certain amount of money from the bank account of Sh. Akash Chittranshi was diverted by the defendants into the account of defendant No.4 with the assurance that this would help in keeping the money out of the reach of the Ex-wife of Sh. Akash Chittranshi and that once the matter is sorted out, the money would be transferred back to the plaintiff from the account of defendant No.4.

3. The learned counsel appearing for defendant No.3 has argued that the present application filed by defendant No.3 was liable to be allowed as no relief for damages has been claimed and the suit is hit by Section 40(2) of the Specific Relief Act. It is stressed that in the entire plaint there is no averment made against defendant No.3 and that she has been added as a party only to harass her inasmuch as she is the wife of defendant No.1. It is stressed that a perusal of the plaint would show that there is no allegation made that defendant No.3 was a party to the alleged fraudulent agreement or a beneficiary. It is stated that said defendant No.3 is neither a necessary nor a proper party.

4. Learned counsel for the plaintiff has submitted that there are serious allegations and claims of plaintiff against defendant No.3. Reliance is placed on para 20 of the plaint, where averments are made that defendants No. 1, 2 and 3 have mischievously obtained two back dated letters from plaintiff No. 3 where the transfer of a total sum of Rs. 38,00,000/-was purportedly shown as voluntary donation to defendant No.4. Various reliefs as stated above are claimed jointly and severally against the defendants.

5. Order 1 Rule 10 (ii), CPC reads as follows:

“Rule 10.(1) .........

(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.

(3).........................

(4).........................

(5).........................”

6. The Hon’ble Supreme Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited And Ors (2010) 7 SCC 417, in para 22, held as follows:

“22. Let us consider 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. 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 c