A party cannot be impleaded in an ongoing suit against the wishes of the plaintiff unless they are deemed a necessary or proper party under Order 1 Rule 10 CPC.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. K.K.Mishra, learned Advocate for the Petitioner and Mr. G.Mishra, learned Senior Counsel for Opposite Parties.

2. Present Petitioner is the Applicant in a petition under Order 1 Rule 10 CPC praying to implead her as a party in the suit between present Opposite Parties 1 & 2 as Plaintiff and Defendants respectively in C.S. No.217 of 2019 pending before learned Senior Civil Judge (LR & LTV), Berhampur.

3. The Plaintiff filed the suit praying for a decree for recovery of possession with further prayer against the Defendant to vacate the house and deliver the possession thereof to the Plaintiff. The Defendant filed her written statement contesting the suit. The suit proceeded and presently is at the stage of evidence adduced from the side of the Plaintiff. The Plaintiff has already examined two witnesses on his behalf. At this stage present Petitioner claiming to be in possession of part of the suit house filed a petition under Order 1 Rule 10 of CPC praying to add her as Defendant No.2 granting an opportunity to contest in the suit. Said prayer of the Petitioner has been refused by the Trial Court on the ground that the Petitioner is neither a necessary nor a proper party to the suit.

4. Mr. K.K.Mishra, learned counsel for the Petitioner submits that considering the possession of the Petitioner in a portion of the suit house, where the Plaintiff has sought for recovery of possession, certainly her right is going to be affected in the event the decree is passed in favour of the Plaintiff. It is further submitted that according to the Defendant and present Petitioner there was an oral sale between Defendant and Petitioner’s mother in the year 2018 for consideration of Rs.50,000/-.

5. Conversely, Mr. G.Mishra, learned Senior Counsel submits that even if the possession of present Petitioner is established in a portion of the suit house then also her right is not going to be affected in the event the decree is passed in favour of the Plaintiff. According to Mr. G.Mishra, learned Senior Counsel for the Opposite Parties, the Plaintiff in her wisdom did not choose to implead present Petitioner as a party in the suit and thereby taking the risk of the fact that the decree would not be binding on present Petitioner.

6. The principles for impleading a party to the suit has been well discussed in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417. It has been held that:-

“13. 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. The said sub-rule is extracted below:

“10. (2) Court may strike out or add parties.—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, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

14. The said provision makes it clear that a court may, at