Case Note & Summary
This appeal arose from the order of a learned single Judge of the Bombay High Court rejecting Chamber Summons No.1334/2004, by which the appellants sought to be added as co-plaintiffs in Suit No.1335/1988. The suit had been filed by G.I.C. Employees Sonal Vihar Co-operative Housing Society Ltd. (plaintiff No.1) and Mrs. Kusum Gorule (plaintiff No.2) against the Vaity family (original owners) for specific performance of an agreement dated 28th April 1980 relating to a large plot of land at Mulund, Mumbai. Mrs. Kusum had entered into an agreement with the Vaity family, and subsequently an agreement with the G.I.C. Society to provide constructed area after developing the property. Disputes arose between the two plaintiffs, leading to cross applications for transposition. The appellants, M/s. Chitralekha Builders and Smt. Nina Anil Shah, claimed that Mrs. Kusum had transferred her interest in the 1980 agreement to their partnership firm, and therefore they had a stake in the litigation. Their chamber summons to be joined as co-plaintiffs was opposed on the ground that the plaintiffs were dominus litis and could not be forced to accept co-plaintiffs. The single Judge, while transposing plaintiff No.1 as defendant and allowing plaintiff No.2 to continue, dismissed the appellants’ summons, holding that a party cannot force itself as a co-plaintiff, and that an identical earlier summons had been dismissed in default. During the pendency of the appeal, further events occurred: Mrs. Kusum entered into consent terms with the Vaity family, a consent decree was passed on 16th February 2005, and subsequently the G.I.C. Society was again transposed as plaintiff, while Mrs. Kusum became defendant No.54. The appellants then took out Chamber Summons No.961/2005 in the appeal to amend their application to be impleaded as defendants instead of co-plaintiffs. The G.I.C. Society gave no-objection. The appeal and chamber summons were heard together. The appellants argued that their presence was necessary for complete adjudication, that the single Judge had misapplied Mustafa Shareef v. Asif Sharif, and that the earlier dismissal in default was no bar. The court admitted the appeal and heard it finally with consent of parties. However, the provided text of the judgment cuts off during the submissions, and the final decision and reasoning are not included.
Headnote
A) Civil Procedure - Impleadment of Parties - Necessity of Presence - Code of Civil Procedure, 1908, Order 1 Rule 10 - Appellants claimed interest in suit property and that all questions could not be decided without them, but single Judge rejected chamber summons as not maintainable, relying on Mustafa Shareef v. Asif Sharif which itself recognized that a person with a stake should be heard if added as defendant (Paras 4, 19, 20). B) Civil Procedure - Dominus Litis - Exception - Code of Civil Procedure, 1908 - Principle that plaintiff is master of suit does not preclude court from impleading necessary parties for effective adjudication; appellants could not force themselves as co-plaintiffs but could be added as defendants if requisite conditions satisfied (Paras 11, 19). C) Civil Procedure - Subsequent Events - Court’s Power - Code of Civil Procedure, 1908 - Rights crystallise on date of institution but court may take note of subsequent events and mould relief accordingly; here, consent decree between plaintiff and some defendants, and transpositions, were brought on record (Paras 14-16). D) Civil Procedure - Dismissal in Default - Res Judicata - Code of Civil Procedure, 1908, Order 9 - Earlier chamber summons (No.1040/1998) dismissed in default on 15.07.1999 should not operate as bar, as dismissal was not on merits; single Judge incorrectly used it to reject later summons (Paras 11, 21).
Issue of Consideration
Whether the learned single Judge erred in rejecting Chamber Summons No.1334/2004 seeking impleadment of appellants as co-plaintiffs in Suit No.1335/1988
Law Points
- necessity of impleadment of parties with stake in litigation
- dominus litis principle does not bar addition of necessary parties
- consideration of subsequent events to mould relief
- dismissal in default not res judicata
