📘 TOPIC: IMPLEADMENT AS DEFENDANT TO SUIT

⚖️ SUPREME COURT ON IMPLEADMENT AS A DEFENDANT TO THE SUIT

Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

📜 J U D G M E N T

5. In Suit No. 6117 of 2007 filed by respondent No.1 and respondent No.2 against respondent No.3, a Notice of Motion No.1346 of 2018 was moved to add the appellant as the party defendant to participate and contest the aforesaid suit. Earlier, a Notice of Motion No. 1925 of 2017 was also moved by the appellant seeking to set aside the order to proceed in the said suit ex-parte. Both the said motions were allowed by the court of first instance vide a common Order dated 05.10.2018. However, the said order was set aside by the High Court by the impugned judgment and order dated 21.02.2022 in exercise of its power under Article 227.

6. Under challenge in these appeals is thus the above judgment and order of the High Court dated 21.02.2022 setting aside the order of the court of first instance permitting impleadment of the appellant as one of the defendants to the suit meaning thereby that the motion of addition of the appellant as one of the defendants to the suit stands rejected.

9. The aforesaid suit was instituted by respondent Nos.1 and 2 against respondent No.3 for the recovery of service charges at the rate of Rs.2,100/- per month, amounting to Rs.75,600/- for the period November 2004 to October 2007.

11. It was much thereafter on 02.04.2018 that the appellant filed an application for being impleaded as the defendant in this suit contending that it is a successor of respondent No.3. The appellant is actually running the business of respondent No.3. Therefore, it is a necessary party to the suit.

26. Undisputedly, the suit in question has been filed by the owners of the property to recover service charges for the use of furniture and fixtures from the respondent No.3 that was inducted as a sub-tenant in the premises in dispute by M/s Modern Products Pvt. Ltd. The dispute is not regarding recovery of rent or arrears of rent. Therefore, the relationship of landlord and tenant between the parties is completely alien to the controversy in question.

27. The dispute is essentially with regard to payment of service charges between the owners of the property and its user i.e. respondent No.3. Therefore, no other person has any right to be impleaded so as to defend the suit regarding payment of service charges.

33. The fundamental distinction between a “necessary party” and a “proper party” was succinctly explained in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [1992], wherein this Court held:

“6… A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”

34. In Kasturi v. Iyyamperumal [2005], this Court crystallized the twin tests for a necessary party:

“…the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. … two tests are to be satisfied for determining the question as to who is a necessary party. The tests are: (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”

35. This principle has been consistently reiterated. In Mumbai International Airport v. Regency Convention Centre & Hotels [2010], this Court reiterated:

“15. 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.

A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.

If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

37. In the case at hand, the respondent Nos.1 and 2 are not claiming any relief against the appellant. There is no iota of material to indicate that the relief, as claimed in the suit against respondent No.3, if granted, would be implemented against the appellant. Therefore, the appellant is not a necessary party to the suit.

38. The appellant cannot also be construed as a proper party once it has failed to establish that it is a successor to the respondent No.3. In the absence of any evidence to prove that respondent No.3 has ceased to exist or cannot be represented in the suit on its own to contest it on merits, we are of the opinion that the appellant is not even a proper party to provide any assistance to the court in the suit.

39. This apart, the respondent Nos.1 and 2 who have instituted the suit are dominus litis and it is for them to choose their adversaries. If they do not array the proper and necessary parties to the suit, they do it at their own risk. However, they cannot be compelled to add a party to defend a suit against their wishes. The decree, if any, passed in the suit would be binding only between the parties to the suit and would not infringe upon any right of a third party, much less of the appellant that is not a party to the suit.

40. This conclusion is reinforced by the fundamental principle laid down in Kanaklata Das v. Naba Kumar Das [2018], wherein this Court has observed:

“11.4. …the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.”

41. In the above facts and circumstances, if the High Court, for one reason or the other, has set aside the order of impleadment passed by the court of first instance, we do not consider it to be illegal so as to set it aside and restore the order of the Trial Court.

📍 Delhi Law Academy – Jaipur Branch
6C, Tower 2, Coaching Hub, Pratap Nagar, Jaipur – 302033

📞 Phone:
+91 9911916552
+91 8447285606

✉️ Email:
contactus@delhilawacademy.com