A third party's inclusion in proceedings is limited to necessary parties, highlighting the dominus litis principle in civil litigation.

JUDGMENT

Aggrieved by Ext P11 order passed in IA No.1/2020 in F.D.A No.2149/2017 in O.S No.928/2013 of the Court of the Additional Munsiff, Alappuzha, the petitioner in the application – a third party in the final decree application has filed the original petition. The respondents in the original petition are the plaintiffs and defendants in the suit.

2. The facts leading to Ext P11 order, in a nutshell, are: the petitioner is a third party to the suit, which is filed by the first respondent as against the respondents 2 to 7, for a decree of partition. The court below has passed Ext P2 preliminary decree on 23.2.2017. An Advocate Commissioner was appointed to partition the property by metes and bounds with the assistance of a Surveyor. The petitioner is in possession of 92 cents of land in Kalavoor Village for the last 37 years. There was an earlier suit as OS No.948/1983 against the respondents’ predecessor-in-interest, which was dismissed by Ext P3 decree. While conducting the measurement of the properties, the Advocate Commissioner visited the property of the petitioner. It is then the petitioner learnt that his property is also included in the Commissioner’s report. Accordingly, the petitioner filed IA No.1/2020 (Ext P6), IA No.2/2020 (Ext P7) and IA No.3/2020 (Ext P8) to get himself impleaded in the final decree, to seek stay of the final decree proceedings and to set aside the commission report, respectively. The applications were resisted by the defendants 3 and 5 through Exts P9 and P10 objections. The court below, without considering Ext P6 to P8 in their proper perspective, by the impugned Ext P11 common order has dismissed the applications. Ext P11 order is erroneous and wrong. Hence, the original petition.

3. Heard: Sri.P.K Ravi Sankar, the learned counsel appearing for the petitioner, Sri. C.H Chandrabhanu, the learned counsel appearing for the first respondent and Sri.K.C Sudheer, the learned counsel appearing for the respondents, 2, 4 and 5.

4. The question is whether there is any illegality in Ext P11 order.

5. On an analysis of the pleadings and materials on record, it is evident that the petitioner is a third party to the suit. It is his case that, while the Advocate Commissioner was deputed to partition the properties pursuant to Ext P2 decree, he has erroneously included the petitioner’s property in the report. The petitioner desires to enlighten the court below on the mistake in the commission report. In the above background, he filed Ext P6 application to get himself impleaded, Ext P7 to stay the final decree proceedings and Ext P8 to set aside the commission report.

6. The Hon’ble Supreme Court in Sudhamayee Pattnaik and others vs. Bihu Prasad Sahoo and others [2022 SCC Online SC 1234] has categorically held that the plaintiff is the dominus litus of the suit. There are only two modes in which a person can get himself impleaded in a suit: (i) on an application of the plaintiff under Order 1 Rule 10 of the Code of Civil Procedure, and (ii) at the instance of the Court.

7. In the case at hand, the court below has found that the petitioner is a stranger to the proceeding. Therefore, the court below held that the petitioner is not a necessary party to be impleaded in the suit.

8. Going by the law laid down in the aforecited decision, and taking note of the contentions in Ext P6 to P8 applications, I am of the definite view that the petitioner is an unnecessary party to the final decree proceedings. Nevertheless, I find that the observations made by the court below in paragraph 6 of Ext P11 order, that the contention of the petitioner that he has acquired right over the petition schedule properties as per Ext A1 is incorrect and he has no interest over the said property, are totally unwarranted and unnecessary in the context of the above applications because they are rendered without any adjudication. Therefore, I am of the firm view that the observations made in paragraph 6 have to be expunged leaving open the