JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 16.4.2015 passed by the learned 1st Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.631 of 2013 vide Annexure-6. By the said order, learned trial court rejected the application of the defendants under Order 1 Rule 10 C.P.C. to implead the purchasers as well as the daughter and son of defendant no.3 as defendants.

02. The opposite party as plaintiff instituted the suit for partition, declaration that the ‘B’ schedule property is the joint family property and permanent injunction impleading the petitioners as defendants. Pursuant to issuance of summons, two written statements had been filed, one by defendant nos.1 and 2 and another by defendant nos.3 & 4 refuting the allegations made in the plaint. The defendants have challenged the maintainability of the suit on the ground of non-joinder of necessary parties. While the matter stood thus, the defendants filed an application under Order 1 Rule 10 C.P.C. praying, inter alia, to implead the transferees and daughter and son of defendant no.3 as defendants. No objection was filed by the plaintiff. Learned trial court came to hold that the application filed by the defendants under Order 7 Rule 11 C.P.C. for rejection of plaint has been rejected. Further the plaintiff is the master of the suit and he cannot be compelled to implead the intervenors as defendants. Held so, learned trial court rejected the application on 16.4.2015.

03. Heard Mrs. Supriya Patra, learned counsel for the petitioners and Mr. Satya Shiva Dash, learned counsel, appearing on behalf of Mr. A.P. Bose, learned counsel for the opposite party.

04. Really two points arise for consideration of this Court;

(1) Whether the court can implead a party as defendant against the wish of the plaintiff ?

(2) Whether the intervenors are necessary or property parties to the suit ?

Point No.1

05. An identical question came up for consideration before this Court in Indrajit Dandasena and others v. Mangal Charan Dandasena and others, 57 (1984) CLT 31. Learned Single Judge, before whom the revision came up for hearing, has observed that there are cleavage of decisions of this Court on the point. The matter was referred to a larger Bench. This Court went in-depth into the matter and held that the maxim “dominus litis” means the plaintiff is the master of suit. It was further observed that the rule of dominus litis is subject to the powers of the Court under Order 1, Rule 10(2) of the Code inasmuch as the said rule authorizes the Court to direct addition of further parties to the suit even suo motu where it appears that such impletion is just and the party who has not been joined in the litigation by the plaintiff is either a necessary or a proper party. The exercise of discretion by the Court in cases where it satisfies the requirements of the rule would be made nugatory if the controlling authority would be the plaintiff by application of the rule of dominus litis. As a matter of fact, while considering as to whether impletion of a party is necessary to pass an effective and executable decree, or to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit the Court is required to go into the question as to whether the discretion is to be exercised by it in the facts and circumstances of the case.

Point No.2

06. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786, the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

07. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886, the apex Court held that it is firmly established as a result of judicial decisions that