The main legal point established in the judgment is that the court has the discretion to add proper or necessary parties at any stage of a proceeding, and purchasers pendente lite have the right to be impleaded in a suit for partition to avoid multiplicity of litigation.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 19.04.2016 passed by the learned Civil Judge (Sr. Divn.), Kantabanji in C.S. No. 34 of 2014. By the said order, learned trial court rejected the applications of defendant no.2 under Order 1 Rule 10 C.P.C. to implead the lis pendens purchaser and others whose names have been recorded in the remarks column of ROR as defendants.

2. Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioner and opposite party nos.2 to 5 as defendants. Pursuant to issuance of summons, the defendant nos.1 to 3 entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, the defendant no.2 filed an application under Order 1 Rule 10 C.P.C. to implead the lis pendens purchaser as well as the persons whose names find place in the remarks column of ROR as defendants. It is stated that the plaintiff has sold some portions of the suit land by means of a registered sale deed to one Ratindra Kumar Rai and others. The name of other intervenors has been recorded in the remarks column of the ROR. The plaintiff filed objection. Learned trial court came to hold that the plaintiff is the master of his suit. He will decide to whom he will implead as a party. If any necessary party has not been impleaded as party, the defendant may bring that fact to the notice of the plaintiff in his written statement and may take the plea of non-joinder of necessary parties. In such a contingency, the plaintiff may implead him as a party. Held so, learned trial court rejected the application.

3. Heard Mr. B.B. Mishra, learned counsel for the petitioner. None appears for the opposite parties in spite of valid service of notice.

4. An identical matter came up for consideration before this Court in the case of Janaki Das vs. Sidheswar Das and others (disposed of on 17.03.2017 in C.M.P. No. 1347 of 2014). This Court held:

“07. In Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, (2010) 7 SCC 417, the apex Court held thus:-

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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.

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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.” (emphasis laid)

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 i