The main legal point established in the judgment is the interpretation of the provisions of Order 1 Rule 10 of the Civil Procedure Code regarding the impleadment of parties and the determination of necessary parties for a suit.

Heard on admission.

2. This petition filed under Article 227 of the Constitution is directed against the order dated 1-5-2017 whereby the application preferred by respondent No. 2 under Order 1, Rule 10(2), Civil Procedure Code for deletion of his name from the counter-claim filed by the petitioner is allowed by the Court below. Shri Vishwakarma assailed this order by contending that the petitioner in the counterclaim impleaded the defendant No. 2 and 3. The defendant No. 3 of counterclaim is also not a party in the plaint. The Court below without considering the same directed for deletion of the name of defendant No. 2. The defendant No. 2 was helping defendant No. 1 being her husband. In various proceedings which resulted into entering into an agreement dated 30-4-2015, Shri Narayan Sarkar, defendant No. 2 had taken active part as well as he is a necessary party. Reliance is placed on Order 1, Rule 3, Civil Procedure Code. In addition, it is urged that the Court below could have decided this aspect while deciding the suit finally. He takes support from section 35-A of Civil Procedure Code. Lastly, Shri Vishwakarma relied on the judgment of Supreme Court reported in (2008) 13 SCC 658, Bharat Karsondas Thakkar v. Kiran Construction Company.

3. Prayer is opposed by Shri Agrawal.

4. I have heard the parties on admission.

5. During the course of arguments, learned counsel for the petitioner fairly admitted that Shri Narayan Sarkar is not signatory to the agreement. Thus, the core issue is that merely because he put his signature as a witness or remained present during conversation etc. whether he can be impleaded. In my opinion, the defendant No. 2 of counter-claim was not a necessary party. This is trite law that a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. In the present case, defendant No. 1 has been impleaded in the counter-claim who is signatory to the agreement. The witness of agreement, even if he is husband of defendant No. 1 cannot be treated to be a necessary party. Accordingly, I am unable to hold that the defendant No. 2 was a necessary party. The question whether defendant No. 3 of counter-claim was a necessary party or not is irrelevant for the present proceedings. Pertinently, application for deletion of name was filed by Shri Narayan Sarkar and while deciding this application, the Court below had no occasion to examine whether defendant No. 3 should remain in the array of respondents. Thus, this contention is devoid of substance.

6. In the case of Bharat Karsondas Thakkar (supra), it was held that the parties to the contract or their legal representatives are necessary parties. In the present case, defendant No. 1 is alive and; therefore, question of impleadment of legal representatives does not arise. So far section 35-A is concerned, a plain reading of this provision makes it clear that it is an enabling provision wherein compensatory cost can be imposed in respect of false or fictitious claim. The purpose of insertion of Order 1, Rule 10 and section 35-A are different. Order 1, Rule 10, Civil Procedure Code enjoins the powers to the Court to add or delete a party at any stage of proceedings if their impleadment is necessary or unnecessary, as the case may be. Whereas section 35-A is an enabling provision for imposition of cost or compensation for a false or fictitious claim. Thus, in my view reliance on section 35-A for the present purpose is a misconceived notion. On behalf of the applicant, the Court below has passed plausible order which is in consonance with Order 1, Rule 10, Civil Procedure Code. In absence of any jurisdictional error, procedural impropriety or palpable perversity, I find no reason to entertain this petition filed under Article 227 of the Constitution. Accordingly, admission of this case is declined.

7. Pe