The main legal point established in the judgment is that the provisions of Order 1 Rule 10 CPC were applied to determine the necessity of a party in a suit, emphasizing that the controversies raised should be between the parties to the litigation and not between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party.

MANMOHAN SINGH, J.

1. By way of this order I propose to decide application being I.A. No. 1178 of 2010 under Order 1 Rule 10 CPC filed by the defendant No. 3 for deletion of his name from the array of parties in the suit filed for recovery by the plaintiffs against the defendants.

2. It is stated in the application that the plaintiff Nos. 1, 2 and 3 are brothers/sisters of the defendant No. 1. The defendant no. 2 is wife of the defendant No. 1. The defendant No. 3 is the father of the defendant No. 2. It is further stated that the suit for recovery has been filed by the plaintiffs against the defendants on the pretext that during the lifetime of the mother of the plaintiffs and the defendant Nos. 1 and 2, sold her self-acquired property bearing No. 219, Sector-28, Faridabad, measuring 166.66 sq. ft. (hereinafter referred to as the suit property).

The case of the plaintiff is that as per the Sale Deed, the property was valued at Rs. 8.75 lacs, however the value of the property at the time of sale was approximately Rs. 38 lacs and thus, there was undervaluation of the property in the sale deed.

3. It is stated by the defendant No. 3 that since defendant No. 3 is neither a necessary nor a proper party to the suit, his name ought to be deleted from the array of parties. It is also stated that there is no cause of action as against the defendant No. 3 in favour of the plaintiffs. The mere allegation is that an amount of Rs. 16 lacs has been handed over to him by defendant No. 1 on 30th August, 2007, the fact which is denied by defendant No. 3. But there is no averment in the plaint as to how the remaining amount of Rs. 27.20 lacs is recoverable from him who specifically stated that is 78 years old and suit for recovery is with respect to recovery of their shares in the sale consideration by the plaintiffs and that the defendant No. 3 has no role and was not part of any sale transaction. In case the name of the defendant No. 3 is not deleted from the array of parties, irreparable loss and injury would be caused to the defendant No. 3.

4. Reply to application on behalf of the defendant No. 3 was filed by the plaintiffs wherein it was stated that the defendant No. 3 is a proper and necessary party to the suit as he has received an amount of Rs. 16,00,000/- which was to be divided equally among plaintiff and defendant No. 1 and the youngest brother and without which no proper adjudication was possible. It is further stated that the amount of Rs. 27,20,000/- is being prayed for in the plaint as the defendants are jointly and severally liable to pay the amount to the plaintiffs as the property valued was even more than Rs. 27,20,000 therefore, the amount is recoverable. It is argued by Mr. Ishaan Chawla, learned counsel that defendant No. 3 had a pivotal role in sale transaction as the amount received after the sale is either presently with defendant No.3 or in his knowledge in whose possession it is. It is argued by Mr. Chawla that cause of action arises with respect to the amount from the sale of the self acquired property of the deceased mother and the amount is to be shared by the plaintiff and defendant Nos. 1 and 2 only. The defendant No. 3 has nothing to do with the property or to play any role in this regard. He is also not claiming any right or share in the property.

5. Order 1 Rule 10 Civil Procedure Code, 1908 appears necessary which provides thus:

"Order 1 Rule 10 –

Suit in name of wrong plaintiff:-

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike or add parties - The court