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Synopsis

The Calcutta High Court recently held that as a rule, the court should not add a person as a defendant in a suit when the plaintiff is opposing that addition. The reason is that the plaintiff is dominus litis. He is the master of the suit. He cannot be compelled to fight against whom he does not claim any relief.

The Single Judge Bench of Justice Ajoy Kumar Mukherjee observed that the ultimate decision is upon the court to decide whether the petitioner’s presence in the suit is required or not for effective and conclusive adjudication of the suit.

The bench was hearing a plea filed against the order dated February 24, 2021, passed in a Title suit by Civil Judge 2nd division at Howrah.

In the present case, petitioners claimed that plaintiffs / opposite party no. 1 to 8 had filed a suit against defendants / opposite party no. 9 to 13 for recovery of khas possession of the suit premises, mean profit and for other reliefs. The defendants had filed the written statement with a counterclaim.

The petitioner initially filed an application before the Civil court under Order 1 Rule 10(2) (which deals with impleadment of third parties) of the Code of Civil Procedure (CPC) to be included as a defendant in the suit. The application was rejected by the Civil judge.

Being aggrieved by the decision of the Civil Judge, the petitioners approached the present High Court.

The counsel appearing for petitioners submitted that opposite party no. 9 to 13 are acting in collusion with the plaintiff/opposite party no. 1 to 8 in order to evict the petitioner herein which is reflected in the fact that a collusive written statement has been filed supporting the case of plaintiff and in view of such fact it is necessary that the present petitioner be added as a party/defendant in the suit in order to enable the court to adjudicate the dispute in an appropriate manner.

The counsel further added that the civil court had failed to appreciate that the petitioner’s presence in the suit is required for determining the real question in controversy, in as much as the suit cannot be decided in the absence of the petitioner herein and his interest will be seriously prejudiced if he had not added as a party/defendant in the said suit.

The counsel prayed for setting aside the order impugned and for passing the necessary order to implead the petitioner as a defendant in the said suit

The counsel representing the plaintiff/opposite parties no. 1 to 8 opposed the prayer made by the petitioner to add him as a defendant. The counsel submitted that the plaintiff is dominus litis in the suit and being master of the suit, he had absolute direction to decide against whom he wants to fight and against whom he does not want to fight.

Justice Mukherjee after hearing all the submissions made noted that the only question to be decided in the present context is whether the law requires the sub-lessee/petitioner need be made a party in a suit for eviction against a lessee where the lessee had been pleaded by the lessor to be terminated in both ways i.e. by way of notice as well as by efflux of time.

The court relied on the judgment of Mohiuddin Tarafdar vs. Buddhadev Halder 1994 SCC wherein the top court had said that a sub-tenant in a suit for eviction under whatsoever act is not a necessary party and as such entry of such person is not required for effective and conclusive adjudication of the controversy which comes within the range of the determination of the compass or controversy in the pending lis before the Trial Court.

“If the sub- lessee petitioner is not impleaded in the present suit the result of the suit cannot bind the petitioner herein who has the remedy to file an independent suit or raise the objection as taken in the application for addition of a party, even in an execution proceeding arising from a decree,” the court added.

Accordingly, the bench dismissed the application.

Case Title: Shri Jogesh Gupta v. Shree Shree Iswar Satyanaraynji & Ors

Statute: Civil Procedure Code