Resort to third party procedure.

This is a Civil Revision Petition sought to be preferred against the order made by the learned District Munsif of Badagara in R.I.A. No. 517 of 1956 in O.S. No. 339 of 1955.

The facts are: The suit is one for partition and separate possession of the plaintiff’s share in the properties shown in the plaint. The properties, it is alleged, originally belonged to one Moideenkutti, who died about 20 years ago. Plaintiff alleges that he has obtained a share in the property by virtue of an assignment from some of the legal representatives of the said Moideenkutti. Defendants 8, 10 and 11 also claim shares in the property by virtue of assignments executed in their favour by certain persons who are also stated to be some of the legal representatives of the said Moideenkutti. Therefore, these defendants preferred R.I.A. No. 517 of 1956 in the lower Court contending that in view of the fact that there is keen dispute between the parties regarding the shares, regarding devolution of right and regarding the original partition set up in the written statement and some other matters raised therein, their assignors should also be impleaded. The plaintiff resisted this application on the ground that he cannot be compelled to implead the assignors in view of the admitted position that they have no subsisting right over the properties and that it is only an attempt to cause unnecessary complications and put the plaintiff to trouble, delay and expense and that he cannot also be compelled to implead persons for the purpose of safeguarding the rights of the party defendants which should be left open to be agitated by them if necessary, in separate proceedings.

Order 1, rule 10(2) of the Code of Civil Procedure, states:

“ 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” .

The sub-rule corresponds to the second sentence of Order 16, rule 11 of the English Rules of Supreme Court and confers wide discretion on the Court to meet every case of defect of parties but is subject to two limitations, viz., (1) that the Court has no power to join a person as a party if he could not have been originally impleaded under Order 1, rule 1 or rule 3, Civil Procedure Code and (2) that the presence of the person added must be necessary to effectually and Completely adjudicate upon and settle all points involved in the suit. The discretion must be exercised in a reasonable manner so as not to cause inconvenience or embarrassment. In exercising the powers under this rule Courts ought to see that they do not load the record with parties who are shown to have only indirect or remote interest and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected controversies. This section does not authorise the Court to introduce into a suit as a defendant a person who claims the property in the suit by a title quite distinct from that under which any of the parties to the suit claims, Kalian Rai v. Ram Ratan1, see Jayagobind v. Gouree2. A person can be added only when there are questions directly arising out of and incidental to the original cause of action in which such person has identity or community of interest with one or other original plaintiff or defendant. Narami v. Durgan3, see also Mahammad v. Nichols.4 The plaintiff who pays heavy Court-fee is after all the dominus lites, and is entitled in the absence of the over-riding considerations provided in Order 1, rule 10(2), to prescribe the carriage of his own suit. The Court should not r