JUDGMENT

Dr. A.K. RATH, J. - This petition challenges the order dated 25.7.2016 passed by the learned Civil Judge (Sr. Divn.), Rourkela in C.S. No.195 of 2011, whereby and whereunder learned trial court rejected the application of the plaintiffs filed under Order 1 Rule 10 C.P.C. to implead Sobha Singh, wife of Ranjit Kumar Singh, as defendant no.2.

02. The plaintiffs-petitioners instituted the suit for permanent injunction and recovery of possession impleading the opposite party no.1 as defendant. Pursuant to issuance of summons, the defendant entered contest and filed a written statement stating inter alia that the land has been mutated in the name of Harminder Singh in Case No.1222 of 2001 by the Settlement Officer. Out of the suit land, one Achintya Sen sold a piece of land measuring an area Ac.0.030 dec. to Smt. Sobha Singh, wife of Ranjit Kumar Singh, defendant, by means of a registered sale deed of the year 2010 and delivered possession. She has constructed a house and resided thereon. While the matter stood thus, the plaintiffs filed an application under Order 1 Rule 10 C.P.C. to implead Sobha Singh, wife of the defendant, as defendant no.2. The defendant filed objection to the same. Learned trial court came to hold that the written statement was filed in the year 2011 and the petition for impleadment was filed on 4.7.2016, i.e., after five years. It is the discretion of the court to implead the parties. Held so, it rejected the said petition.

03. Mr. A.P. Bose, learned Advocate for the petitioners, submits that a part of the suit land has been alienated to Sobha Singh, wife of the defendant. The said fact came to the knowledge of the plaintiffs after the written statement was filed. The hearing of the suit has not begun. The intervenor is a necessary party to the suit.

04. Per contra, Mr. S. Udgata, learned Advocate for the opposite parties, submits that the written statement filed in the year 2011. But then, the petition for impleadment was filed after gap of five years. The intervenor is neither necessary nor property party to the suit. To buttress the submission, he places reliance on the decision of the apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others, AIR 2010 SC 3109.

05. 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.

06. 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 in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property.

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

“12. Let us consider the scope and ambit of Order I of Rule 10(2), CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party 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 i