The main legal point established in the judgment is the distinction between a 'necessary party' and a 'proper party' and the principle that a party cannot be compelled to add a stranger to the suit as a party defendant.

S.A. Dharmadhikari, J.

With the consent of learned counsel for the rival parties, the matter is heard finally.

2. In this petition under Article 227 of Constitution of India, the petitioner is aggrieved by impugned order dated 09/09/2014, whereby, the application under Order 1, Rule 10 of the Code of Civil Procedure (herein after referred to as 'CPC') for impleading him in the suit for eviction from portion of house which has been rented out, recovery of arrears of rent and damages has been rejected by 3rd Civil Judge, Class-II, Vidisha.

3. The brief facts leading to filing of this petition are that the respondents No. 1 & 2/plaintiffs have filed a suit against the respondent No. 3 for eviction from portion of house which has been rented out, recovery of arrears of rent and damages. The petitioner herein is admittedly not a party in the suit. He filed an application under Order 1, Rule 10 of CPC to get himself added in the suit as defendant on the ground that he is in possession of the suit premises for more than 40-50 years. Considering the long possession of Dinesh Sirbhaiya father of the present petitioner, the owner of the house namely Heera S/o Shri Mishrilal gifted the house to Dinesh Sirbhaiya. This fact was acknowledged by executing Panchnama in the year 1995 by Mohanlal S/o Shri Sorumal Chhugani. Inspite of having knowledge of the said fact, the plaintiffs purchased the house without taking possession and deliberately did not implead the petitioner as party to the present suit who is necessary party. No reply was filed by the plaintiffs/respondents No. 1 & 2 in rebuttal of the said application.

4. Learned counsel for the petitioner contended that even though the petitioner is a stranger to the suit, but looking to the fact that he is in possession of the suit premises for a period of 40-50 years, he is a necessary party in the suit. It is further submitted that in the event the suit is decreed then he would have to suffer irreparable loss. The trial court has heavily erred in rejecting the application under Order 1, Rule 10 of CPC without considering the merit of the case and without passing a speaking order, therefore, the instant petition deserves to be allowed.

5. On the other hand, learned counsel for the respondents submitted that the petitioner has no right to claim any relief in respect of controversy involved in the proceedings and no effective decree can be passed against or in favour of the petitioner. The plaintiffs being dominus litus cannot be forced to add party against whom no relief has been claimed. The trial court is absolutely right in rejecting the application under Order 1, Rule 10 of CPC as such the petition deserves to be dismissed.

6. In order to decide the question as to whether in a suit for eviction, arrears of rent and damages, a stranger or a third party claiming to be in possession over the suit property is entitled to be added as a party/defendant in the said suit, it is necessary to consider the relevant provisions of Code of Civil Procedure under which the Court is empowered to add a party in the suit. So far as addition of the party under CPC is concerned, the power to add a party emanates under Order 1, Rule 10 of CPC. It would be appropriate to refer to the aforesaid provision, which reads as under :-

"10. Suit in the name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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 app