[Order 1 Rule 10 CPC] Can't Compel Plaintiff To Wage Legal Battle Against A Person Against Their Will: Bombay High Court

"..the plaintiff is dominus litis which latin expression means that the plaintiff is the master of the suit," the court stated. It added that the only exception to this would be if the law necessitated the presence of third party, either as necessary party or proper party.

Justice Rohit B. Deo was dealing with a petition related to partition and separate possession of a property.

The petitioners had filed a civil suit in the trial court seeking partition of property. Two individuals, sought to be impleaded as defendants in the suit. They claimed that one of the defendants had executed an agreement for sale in their favour and this made them necessary parties in the suit. The application was filed under Order 1 Rule 10 of the Civil Procedure Code, 1908.

The trial court had allowed the application and ordered for them to be added as respondents. The sale agreement was regarding 4.67 hectares plot in Nashik. The petitioner approached the High Court assailing this order of the trial court.

The court relied on various judgments including Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors., which held that a person is not a necessary party merely because he has relevant evidence to give on some of the questions involved or that he has an interest in the correct solution of some questions involved.

"The right of third parties to enforce the agreement is restricted to defendant 1 and the property which may fall to his share in view of the final adjudication in the partition suit.", the court stated.

The court held that agreement for sale is not a sale deed, and doesn't create any interest in the property. "The Agreement of Sale dated 15.7.2013 which is purportedly executed by defendant 1 in favour of the third parties prior to institution of the suit for partition has not fructified into conveyance," the court noted.

The court relied on Section 54 of the Transfer of Property Act, 1882 which states that an Agreement of Sale per se does not create any interest in the property. "Automatically, a person in whose favour, there is an agreement of sale purportedly executed by a party to the suit cannot be heard claiming right to participate in the suit on the premise that the Agreement for Sale creates interest in the property."

Therefore, the third parties are neither necessary parties nor proper parties in this case.

Hence, the trial court made a serious error in allowing the application. The court quashed the impugned order of the trial court and directed the trial court to decide the suit within the next twelve months.

Case no: WP 6355 of 2019

Case Title: Jagannath Khanderao Kedar and Anr. v. Gopinath Bhimaji Kedar and Ors.

Citation: 2022 LiveLaw (Bom) 254

Coram: Justice Rohit B. Deo