Case Note & Summary
This writ petition under Article 227 of the Constitution of India arose from the dismissal of an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908, by the Civil Judge Junior Division, Ponda, in a suit for demolition, permanent injunction, and other consequential reliefs. The suit property was situated in Dhavli, Ponda, Goa, and the petitioners, as plaintiffs, had filed the suit against the original defendants. During the pendency of the suit, a mundkarial issue was raised, and the suit was adjourned sine die. The original defendant no.2 died on 9 April 1999. The petitioners moved an application to bring his legal heirs on record within time, but due to an oversight, only the children were brought on record, and the widow, Shobhavati, was omitted. In 2013, Shobhavati filed an application seeking intervention as a necessary party, which the petitioners opposed, and the trial court dismissed on 9 October 2014. In May 2015, the defendants allegedly carried out illegal construction in the suit property, prompting the petitioners to seek temporary injunction. The legal heirs of defendant no.2, in their written statement, specifically pleaded that Shobhavati was a necessary party and that she alone had carried out the construction. Based on this defence, the petitioners applied under Order I Rule 10 CPC to implead Shobhavati. The respondents no.2a to 2c opposed the application, contending that it was frivolous and an attempt to cover up the earlier oversight. The trial court dismissed the application on 12 September 2016, holding that impleadment after 17 years could not be allowed and that allowing it would amount to sitting in judgment over the earlier order. The core legal issue was whether the trial court properly exercised its jurisdiction under Order I Rule 10 CPC in light of the changed circumstances. The petitioners argued that the specific defence raised in the written statement made Shobhavati's presence necessary for a complete adjudication. The respondents no.1a to 1d left the matter to the court, while respondents no.2a to 2c did not contest despite opportunity. The High Court examined Order I Rule 10(2) CPC, which confers wide discretion on the court to add any person whose presence is necessary for the effective determination of all questions in the suit, at any stage. The court observed that the trial court had been unduly swayed by the earlier order rejecting intervention, but the circumstances had materially changed after that order. The subsequent filing of a written statement with a specific plea that Shobhavati was a necessary party and had carried out the construction warranted a fresh consideration of impleadment. The trial court’s refusal to exercise jurisdiction under Order I Rule 10 CPC in the changed scenario was erroneous. The High Court held that the impugned order could not be sustained. Accordingly, the petition was allowed, the order dated 12 September 2016 was quashed and set aside, and the application for impleadment of Shobhavati was effectively allowed.
Headnote
A) Civil Procedure - Impleadment of Parties - Order I Rule 10(2) Code of Civil Procedure, 1908 - Scope of Court's Power - The power under Order I Rule 10(2) CPC is wide and may be exercised at any stage to enable the court to effectually and completely adjudicate upon all questions involved in the suit. Even if an earlier intervention application by the same person was dismissed, a subsequent application for impleadment can be allowed if circumstances have materially changed, such as new pleadings indicating the person is a necessary party. Held, the trial court erred in dismissing the application, ignoring the specific defence that the widow alone had carried out the construction, thereby necessitating her presence for effective resolution of the suit (Paras 7-9).
Issue of Consideration
Whether the trial court rightly dismissed the application under Order I Rule 10 CPC for impleading the widow of deceased defendant no.2, given the changed circumstances and the specific plea of the defendants that she was a necessary party
Final Decision
The writ petition is allowed. The impugned order dated 12/09/2016 passed by the Civil Judge, Junior Division, Ponda, dismissing the application under Order I Rule 10 CPC is quashed and set aside.
Law Points
- Order I Rule 10(2) CPC confers wide power to add necessary parties at any stage to effectively adjudicate all questions in suit
- changed circumstances may warrant impleadment
- earlier rejection of intervention does not bar later impleadment if facts have changed
Case Details
2017 LawText (BOM) (08) 113
WRIT PETITION NO.1078 OF 2016
Shri A.D. Bhobe for the petitioners, Shri K. Noorani under Legal Aid Scheme for respondent nos.1a to 1d
Mr. Shivprassad Venkatesh Kamat and Smt. Sushman Shivprasaad Kamat
Smt. Sunita Vasant Naik & Ors. (legal heirs of Vasant Shankar Naik) and Smt. Supiya Tukaram Velingkar & Ors. (legal heirs of Chandrakant Shankar Naik)
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order of the Civil Judge Junior Division, Ponda, dismissing an application under Order I Rule 10 read with Section 151 CPC for impleadment of a necessary party in a pending suit for demolition, permanent injunction, and consequential reliefs.
Remedy Sought
Petitioners sought to quash the order dated 12/09/2016 and to allow the impleadment of Shobhavati, the widow of deceased defendant no.2, as a necessary party.
Filing Reason
The trial court dismissed the impleadment application despite changed circumstances where the defendants, in their written statement, specifically pleaded that Shobhavati was a necessary party and had alone carried out the alleged illegal construction.
Previous Decisions
The trial court had earlier dismissed an intervention application by Shobhavati on 09/10/2014. Subsequently, by the impugned order dated 12/09/2016, the trial court dismissed the petitioners' application under Order I Rule 10 CPC for her impleadment.
Issues
Whether the trial court was justified in dismissing the application under Order I Rule 10 CPC, given the changed circumstances and the specific defence plea that the widow was a necessary party?
Submissions/Arguments
Petitioners contended that in view of the specific plea in the written statement, Shobhavati was a necessary party whose presence was required for effectual adjudication, and the application for impleadment should have been allowed.
Respondents no.2a to 2c opposed the application as bad in law, frivolous, and an attempt to cover up the earlier oversight, arguing that the impugned order should not be interfered with.
Respondents no.1a to 1d, through their legal aid counsel, left the matter to the orders of the court.
Ratio Decidendi
The power under Order I Rule 10(2) CPC is wide and can be exercised at any stage of the proceedings if the presence of a person is necessary for a complete and effective adjudication of all questions involved in the suit. A material change in circumstances after an earlier order rejecting intervention can justify a subsequent application for impleadment, and the court must exercise its power accordingly, without being unduly bound by the previous order when the context has altered.
Judgment Excerpts
Order I Rule 10(2) C.P.C. empowers the court at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, to order that the name of any person who ought to have been joined, whether as the plaintiff or the defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
The learned trial Court in the changed circumstances ought to have exercised jurisdiction under Order I Rule 10 C.P.C. which it failed to exercise.
Therefore, the impugned order dismissing the petitioners' application for the reasons recorded therein cannot be sustained requiring the intervention of this Court.
Procedural History
The petitioners filed a suit for demolition, permanent injunction, and consequential reliefs against the original defendants. The suit was adjourned sine die due to a mundkarial issue. Original defendant no.2 died on 09/04/1999. An application was made on 30/06/1999 to bring his legal heirs on record, but only the children were brought on record, and the widow Shobhavati was omitted. On 29/06/2013, Shobhavati applied for intervention as a necessary party. The trial court dismissed that application on 09/10/2014. In May 2015, the petitioners alleged illegal construction by the defendants in the suit property and sought temporary injunction. The legal heirs of defendant no.2 filed a written statement specifically pleading that Shobhavati was a necessary party and had carried out the construction. The petitioners then moved an application under Order I Rule 10 CPC to implead Shobhavati. The trial court dismissed this application on 12/09/2016. The petitioners challenged that order by way of the present writ petition, which was allowed on 10/08/2017.
Acts & Sections
- Code of Civil Procedure, 1908: Order I Rule 10, Section 151
