The distinction between necessary and proper parties, and the court's discretion to add or strike out parties under Order 1 Rule 10(2) C.P.C., Section 52, and Article 332 of Mulla Hindu Law.

JUDGMENT :

A.K. Rath, J.

The sole question that hinges for consideration of this Court is as to whether lis pendens purchaser can be impleaded as a party in a final decree proceeding ?

2. Pradip Chandra Ray, the predecessor-in-interest of the petitioners, instituted C.S. No. 175 of 2005-I in the court of the learned Civil Judge (Senior Division), Bhadrak for partition impleading opposite parties 1 to 24 as defendants. The suit was decreed. Thereafter, they levied final decree proceeding. In the final decree proceeding, opposite party nos.25 and 26 filed an application for intervention. The same having been rejected, the instant petition under Article 227 of the Constitution has been filed.

3. Mr. Jujharsingh, learned counsel for the petitioners, submits that the lis pendens purchasers are neither necessary nor proper parties in the final decree proceeding. In view of the same, learned trial court fell into patent error of law in allowing the petition.

4. An identical matter came up for consideration in the case of Janaki Das v. Sidheswar Das and others (CMP No. 1347 of 2014 disposed of 17.03.2017. This Court held :

“07. In Mumbai International Airport Private Limited (supra), the apex Court held thus:-

xxx xxx xxx

The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (‘the Code”, for short), which provides for impleadment of proper or necessary parties.

xxx xxx xxx

Order 1 Rule 10(2) C.P.C. is not about the right of a nonparty 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 can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.

8. 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.

9. In Dhanalakshmi and others vs. P. Mohan and others, AIR 2007 SC 1062, the apex Court held that the appellants have purchased the undivided shares of the respondents Nos. 2, 3, 4 & 6. The first respondent P. Mohan has got an undivided share in the said suit property. The apex Court held that Section 52 deals with a transfer of property pending suit. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent in the suit or proceeding will not affect his right in the suit property by enforcing a partition. The appellants having purchased the property from the other co-sharers are entitled to come on record in order to work out the equity in their favour in the final decree proceedings.

10. This Court in the case of Parameswar Panda vs. Adikandand Panda and others, 2004 (II) OLR 427, had the occasion to deal with the case aris