Writ Petition No.296 of 2016

13th January, 2016.

Petitioner Counsel: Shri N.B. BARGAT
Respondent Counsel: Shri H.D. DANGRE

Cases Cited:
Baban s/o Kundlik Karale Vs. Mahendra S/o. Yelnath Karale and another, 2008(3) Mh.L.J. 222 [Para 6]
Kasturi Vs. Iyyamperumal and others, 2005(5) ALL MR 721 (S.C.)=(2005) 6 SCC 733 [Para 6]

JUDGMENT

JUDGMENT :- Heard Shri N.B. Bargat, Advocate for the petitioners and Shri H.D. Dangre, Advocate for the respondent No.1.

2. Rule. Rule made returnable forthwith.

3. The petitioners / plaintiffs have assailed the order passed by the trial Court allowing the application filed by the defendant No.1 praying that the name of defendant No.2 be struck-off from the array of defendants.

4. The plaintiffs have filed the civil suit seeking for decree in terms of the prayers which are as follows:

"PRAYER : It is therefore most humbly and respectfully prayed that, this Hon'ble Court may kindly be pleased to:

1. Pass a judgment and decree of declaration declaring thereby the plaintiffs are entitled to get execute a registered sale deed in respect of the suit property in their favour from the defendants and the defendant No.1 shall liable to execute the same.

2. Pass a judgment and decree of specific performance of contract directing thereby to the defendant No.1 to execute a registered sale deed in respect of the suit property in favour of plaintiff after receipt of balance consideration and the defendant No.2 may direct to give N.O.C. or any other documents or execution of sale deed in favour of present plaintiffs.

3. Pass a judgment and decree of confirmation of possession of the present plaintiffs in respect of the suit property as a legal owner in the interest of justice.

4. Pass a judgment and decree of permanent injunction restraining thereby to the defendants, their legal heirs, assignee, Power of attorney or any other person claiming under them from disturbing the peaceful possession of present plaintiffs and doing any such act which likely to prejudice the interest of present plaintiffs.

5. Or in alternative if due to any legal impediment if the defendant No.1 is unable to execute sale deed in favour of present plaintiffs in respect of suit property then may kindly direct the defendant No.1 to refund the entire earnest amount of Rs.11,00,000/- alongwith interest thereon @ 18% per annum from the date of it receipt till its realization.

6. Saddle the cost of litigation upon defendants.

7. Grant any other relief which this Hon'ble Court deem just and proper in the all above mentioned facts and circumstances in the interest of justice."

The defendant No.1 filed the application (Exh. No.16) contending that as per the pleadings of the plaintiffs, the agreement specific performance of which is sought, was entered into by plaintiffs with defendant No.1, and defendant No.2 is not party to the agreement and, therefore, he is neither necessary nor proper party in the civil suit. The learned trial Judge considered the submissions made before him and concluded that the defendant No.2 is wrongly impleaded in the civil suit and directed that his name be struck-off from the array of defendants. The plaintiffs being aggrieved by the above order, have filed this petition.

5. After hearing the submissions of the respective parties, I am of the view that the learned trial Judge has committed an error of jurisdiction by entertaining the application filed by the defendant No.1 under Order 1 Rule 10 of the Code of Civil Procedure praying that the name of defendant No.2 be struck-off from the array of defendants.

Order 1 Rule 10(2) of the Code of Civil Procedure enables the Court to strike out the names of plaintiffs or defendants if the Court finds that any party is improperly impleaded. The Court can exercise jurisdiction under Order 1 Rule 10(2) of the Code of Civil Procedure on application by either party or even on its own. However, the provisions of Subrule (2) of Rule 10 of Order 1 of the Code of Civil Procedure cannot be read to mean that the Court can strike out the name of defendant on the application filed by codefendant. The plaintiff is the dominus litis and it is the right of the plaintiff to steer the proceedings as per his wish and desire and defendant cannot dictate terms for proceeding with the civil suit. The defendant No.1 could have filed application for striking out his name from the array of defendants if at all he felt so. However, the provisions of Subrule (2) of Rule 10 of Order 1 of the Code of Civil Procedure do not permit defendant No.1 to seek deletion of name of the defendant No.2.

6. The learned Advocate for the defendant No.1 has submitted that there is nothing under Order 1 Rule 10(2) of the Code of Civil Procedure which debars the defendant from seeking deletion of codefendant from the array of defendants and it cannot be said that the application filed by the defendant No.1 was not maintainable. To support the submission, reliance is placed on the following judgments :

(i) Judgment given by this Court in the case of Baban s/o Kundlik Karale V/s. Mahendra S/o Yelnath Karale and another reported in 2008(3) Mh.L.J.222 and

(ii) Judgment given by the Hon'ble Supreme Court in the case of Kasturi V/s. Iyyamperumal and others reported in (2005) 6 SCC 733 : [2005(5) ALL MR 721 (S.C.)].

None of the judgments deal with the point which I have considered.

7. Even otherwise in the facts of the present case, the plaintiffs have sought relief against the defendant No.2 as is clear from the prayer clause (2) of the plaint. The learned Advocate for the defendant No.1 argued that relief sought by the plaintiffs as per prayer clause (2) cannot be granted by the trial Court and, therefore, there is no need to implead defendant No.2 as party to the civil suit. This submission cannot be accepted at this stage. Ultimately, the plaintiffs may succeed or may not succeed in proving their case and the Court may or may not grant decree in favour of plaintiffs against the defendant No.2, however, at this stage, it cannot be said that the plaintiffs will not be entitled for decree in terms of prayer clause (2).

8. In view of the above, I find that the impugned order is unsustainable.

Hence, the following order:

(i) The impugned order is set aside.

(ii) The application (Exh. No.16) filed by the defendant No.1 is dismissed.

Rule is made absolute in the above terms.

In the circumstances, the parties to bear their own costs.

Petition allowed.