Back
GAUHATI HIGH COURT
I.A. Ansari, J.
Pioneer Co-operative Market Ltd.
and Anr. —Petitioners
versus
Mustt. Mehrun Nessa and Anr. —Respondents
Civil Revision Petition No. 442 of 2009
Decided on 11.5.2010
Counsel for the Parties:
For the Petitioners:Mr. P.S. Deka, Advocate.
For the Respondents:Mr. S.M. Ali, Advocate.
IMPORTANT POINT
In a civil suit or proceeding, court considers question of necessary party keeping in view litigation before it and litigants appearing before it or available on record.
Headnote:(i) Civil Procedure Code, 1908—Order I, Rule 10—Impleadment of necessary party in suit—In a civil suit or proceeding, court considers question of necessary party keeping in view litigation before it and litigants appearing before it or available on record—Necessary party is one without whose presence no relief can be granted and a proper party is one, whose presence is necessary for completely and effectually adjudicate upon dispute. (Paras 11 to 15)
(ii) Civil Procedure Code, 1908—Order I, Rule 10—Impleadment of necessary party in suit—Though, primarily, it is for plaintiff to decide as to who shall be impleaded as a party in his suit, sub-rule (2) of rule 10 of Order 1 clearly empowers court to either strike out or add parties—When court finds that a person has been improperly impleaded, whether as a plaintiff or defendant, court can name of such a party to be struck out—A proper party is one, whose presence is necessary for the purpose of effectively and completely adjudicating upon and settling all questions involved in suit. (Para 13)
(iii) Civil Procedure Code, 1908—Order I, Rule 10—Impleadment of necessary party in suit—When a declaration, as regards status or legal character, may have a bearing on status or legal character of another person, then, such a person, who may be so affected, would become a necessary party—Though, by adding parties, necessary and proper, court prevents multiplicity of actions, merely with object of preventing multiplicity of actions, parties cannot be added. (Para 19)
(iv) Civil Procedure Code, 1908—Order I, Rule 10—Impleadment of necessary party in suit—Though addition of parties, necessary or proper, may have be desirable effect of preventing multiplicity of proceeding and this may be desirable consequence, it cannot be regarded as main objective of addition of parties—Person to be joined must be one, whose presence is necessary as a party—What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness—It is not merely that he has an interest in correct solution of some question involved and has thought of relevant arguments to advance—Only reason, which makes it necessary to make a person a party to an action is that he be bound by result of the action question to be settled, therefore, must be a question, which cannot be effectually and completely settled unless he is a party. (Para 20)
(v) Civil Procedure Code, 1908—Order I, Rule 10—Impleadment of necessary party in suit—Where suit relates to property, the party, who seeks to be added as party, must have direct interest in property—As against suit relating to property, when suit is as regards declaration of status or legal character, persons, who would be bound by out come of suit, are necessary to be added as parties—Such a person would, if not necessary, be a proper party—A declaratory judgment, in respect of disputed status, will be binding not only upon parties, who are actually before court, but also upon persons claiming through them. (Para 22)
(vi) Assam Cooperative Societies Act, 1949—Section 35—Section 35 empowers State Government to depute a Government servant to manage affairs of a society—There is an element of public interest involved in affairs of every registered society—Article 226 provides public law remedy and it is pursuant to, and in public interest, that High Court had invoked public law remedy, as provided under article 226, and appointed Deputy Commissioner and his representative—State had interest in affairs of Society and it is this interest, which has been protected by orders of High Court—Deputy Commissioner was not entirely a stranger to the suit—Trial court directed to add the officer, who may have been appointed by Deputy Commissioner to1ookafter affairs of Society, as a defendant, in suit. (Para 27)
Resul: Petition disposed of with directions.
I.A.Ansari, J.—This is an application, made under article 227 of the Constitution of India, seeking to get set aside and quashed the order, dated 19.8.2009, passed, in Title Suit No. 831/2006, whereby the learned Munsiff No. 2, Kamrup, has rejected the application of the present petitioner, who is defendant No.1 in Title Suit No. 831/2006 aforementioned, seeking to file written statement.
2. Before coming to the merit of the present application, certain material facts, which are relevant for the purpose of disposal of this revision, need to be pointed out.
3. The suit aforementioned was filed by the respondents herein seeking declaration of their rights, title and interest over the suit land and recovery of possession thereof. The defendant No.1 stood impleaded, in the suit, as ‘Pioneer Co-operative Market Ltd. (Regd. No. G54/65/66, Athgaon, Guwahati-8, Assam, represented by its President/Secretary’.
4. There is no dispute that the defendant No.1 is a co-operative society registered under the Assam Co-operative Societies Act, 1949, and it can, ordinarily, be represented by its President or Secretary. Alleging that the affairs of the said Society were not being carried out properly and in accordance with law, a writ petition, under article 226 of the Constitution of India, was filed, which gave rise to WP(C) No.3835/2000, wherein an order was passed, on 1.8.2000, directing the Deputy Commissioner, Kamrup, to manage the affairs of the said society either by himself or by an officer to be appointed by him. On the order, so passed, on 1.8.2000, the learned trial court, on a petition filed by the plaintiffs, allowed, on 2.3.2002, to correct the address of the defendant No.1. The new address of the defendant No.1 accordingly came to be recorded as “Pioneer Co-operative Market Ltd., (Regd No. 54/65/66), Athgaon, Guwahati, Assam, represented by its President/Secretary, C/o. Deputy Commissioner, Kamrup, Guwahati.”
5. There is nothing, in the records, to show that on correction of the address of the defendant No.1 as indicated hereinbefore, any notice was served anew on the Deputy Commissioner, Kamrup, Guwahati.
6. As none appeared on behalf of the defendants, an order was passed, in the suit, on 19.4.2002, directing that hearing of the suit would proceed ex parte against all the defendants. Subsequent thereto, and to be precise, on 4.10.2002, the said writ petition was finally disposed of with certain directions and till the directions, so given, were to be carried out, the court directed the Deputy Commissioner, Kamrup, to manage the affairs of the said society in the same manner as had been directed earlier.
7. Upon disposal of the writ petition as aforesaid, a petition was filed, on 21.8.2003, in the suit, by defendant Nos. 2, 4. 5, 6, 18, 19, 20 and 23, under order 1, rule 10(2) read with section 151 of the Code of Civil Procedure, praying for impleading the Deputy Commissioner, Kamrup, as defendant No. 1 in view of the directions given by the High Court in its order, dated 4.10.2002, aforementioned in WP(C) No. 3835/2000. The petition, so filed, on 21.8.2003, came to be rejected by the learned trial court on 1.10.2003. The reason assigned, in this regard, by the learned trial court reads, “In my considered opinion the society has been made party to the suit which is functioning under the DC, the DC, Kamrup, need not be made a party to represent the society.”
8. Thereafter, Dipak Choudhury, who was the officer, appointed by the Deputy Commissioner, Kamrup, to look after the affairs of the said Society, too, filed a petition, on 12.8.2004, in the said suit, seeking to get impleaded, in the suit, pursuant to the orders of the High Court passed in WP(C) No. 3835/2000. No effective order was, however, ever passed on the said petition.
9. In course of time, the suit was dismissed for default on 11.10.2004 and it came to be restored only on 15.11.2007 by an order, passed, in this regard, in the suit, whereupon another petition
