Rejection of an application under Order 1, Rule 10(2) of the Code of Civil Procedure for addition of a party does not operate as res judicata if at a later stage of the suit an application is made under Order 6, Rule 17 of the Code to implead the said party, provided that the amendment sought is necessary to determine the real controversy between the parties and does not cause any prejudice to the other side, substitute any distinct cause of action for another, or alter the nature or character of the suit.

R. C. PATNAIK, J.

( 1 ) THIS revision raises the question whether rejection of an application under Order 1, Rule 10, sub-rule (2) of the Code of Civil Procedure for addition of a party operates as res judicata if at a later stage of the suit an application is made under Order 6, Rule 17 of the Code to implead the said party.

( 2 ) THE petitioner brought an action for declaration of title, confirmation of possession and the relief of permanent injunction. He alleged that his father purchased the property in dispute in 1963 by a registered sale deed from one D. Buchibabu Dora who was the brother of defendant No. 1. In a partition, which took place around 1949, Defendant No. 1 (Opposite party No. 1) and his brothers, namely, D. Buchibabu Dora and D. Rammurty Dora, were allotted specific properties and the property in dispute was in possession and enjoyment of D. Buchibabu Dora. There was some mistake in the description of property. Registered document rectifying the mistake was obtained in 1975. When in a proceeding under Sec. 145 of the Code of Criminal Procedure the opposite parties' (Defendants') possession was declared, he brought action for the relief stated above. On 2-4-1980, an application under Order 1, Rule 10 of the Code was filed for impletion of D. Buchibabu Dora on the ground that he was a necessary party to the action. The application was rejected on 10-5-1980 on the ground that he was not a necessary party to the suit. Thereafter, on 12-11-1980 an application was filed under Order 6, Rule 17 of the Code for impletion of the brothers of opposite party No. 1 (Defendant No. 1), namely, D. Buchibabu Dora and D. Rammurty Dora, as defendants. It was alleged that having regard to the pleas taken by the defendants, it was just and proper that the two brothers of opposite party No. 1 (Defendant No. 1) should also be impleaded. It was further averred that since the question of earlier partition and allotment of the suit property to the share of Buchibabu Dora was in controversy, his prayer for amendment should be allowed. Amendment of the reliefs by seeking recovery of possession and mesne profits from opposite parties 1 to 4 was also prayed for.

( 3 ) THE opposite parties opposed the motion for amendment alleging that the amendment would alter the nature of the suit and would introduce a new case; besides, the move was belated and mala fide. The trial court being of the view that earlier order dated 14-5-1980 rejecting the petitioner's application for impletion of Buchibabu Dora under Order 1, Rule 10 of the Code stood as a bar, rejected the prayer. It, however, permitted amendment, of the reliefs.

( 4 ) THE counsel for the parties relies upon certain authorities. I shall notice a few of them. It was the contention of the petitioner's counsel that earlier rejection of an application under Order 1, Rule 10 of the Code did not operate as res judicata and a subsequent application under Order 6, Rule 17 of the Code was entertainable, whereas Mr. Ramdas for the opposite parties strenuously urged that the earlier rejection of the self-same prayer operated as res judicata.

( 5 ) SUB-RULE (2) of Order 1, Rule 10 of the Code provides that 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, be struck out to meet every case of defect of parties. The power should not be exercised arbitrarily, but on judicial principles. The object of the rule is to bring before the Court all persons at the same time who are involved in the dispute relating to the subject-matter so that the disputes may all be determined at the same time without delay, inconvenience and expenses on separate actions and trials. Sub-rule (2) covers two types of cases; (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question i