Order 1 Rule 10 CPC | Delhi High Court Reiterates Principles To Be Applied While Deciding Application For Deletion From Array Of Parties

The present petition was filed under Article 227 of the Constitution of India seeking to set aside of the order whereby an application filed on behalf of the Respondent (Defendant no. 7 in original suit) seeking deletion from the array of parties was allowed.

At the outset, Justice Amit Bansal referred to the principles to be applied while invoking powers under Order I Rule 10 CPC, as laid down by the Supreme Court in Vidur Impex and Traders Pvt. Ltd. & Ors. Vs. Tosh Apartments Pvt. Ltd. & Ors., (2012) 8 SCC 384 and Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. & Ors., (2010) 7 SCC 417:

- The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

- A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

- A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

- If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.

- Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.

In the instant case, the Court noted that a bare reading of the plaint discloses that the Petitioner (plaintiff in original suit) has made averments in the plaint against the Respondent (defendant no. 7) which are sufficient in nature for it to be a necessary and a proper party for the adjudication of the suit.

The suit was filed by the Petitioner herein premised on damage to his career, reputation and life caused by the misuse and abuse of the legal process in getting a 'Look Out Circular' (LOC) and RCN issued by the defendants against the petitioner.

It was alleged that following a matrimonial dispute, the Petitioner's wife, through her brother (Respondent/ defendant no. 7) who was a IPS Officer lodged a false FIR lodged and got issued illegal LOC and RCN against the Petitioner.

The Court noted that defendant no. 7 was not posted in Delhi, nor was he directly involved with the issuance of LOC and/or RCN in the course of his official duty. The involvement of the defendant no. 7 is only based on the fact that he is the brother of Petitioner's wife and was trying to help her in her matrimonial disputes against the Petitioner.

In this backdrop, it observed,

"In my view, the averments made in the plaint, are sufficient for the impleadment of defendant no. 7 in the suit. Whether or not the said averments are true would be a matter of trial and the plaintiff would have to prove the said averments in the trial. But, at this stage, the plaintiff cannot be denied an opportunity of proving the averments made by him against the defendant no. 7 in the suit."

It further noted that even though while deciding an application under Order I Rule 10(2) of the CPC, reference has to be made to the averments made in the plaint, the Court had allowed the application under Order VII Rule 11 of the CPC on a piecemeal basis.

"While adjudicating an application under Order VII Rule 11, the plaint has a whole has to be rejected if the conditions mentioned under Order VII Rule 11 are fulfilled. However, the plaint cannot be rejected in a piecemeal manner."

The petition was accordingly allowed and the impugned order, to the extent it rejected the plaint qua defendant no. 7 and allowed deletion of the defendant no. 7 from the array of parties under Order I Rule 10(2) of the CPC was held to be manifestly erroneous.

Case Title: Sumer Singh Salkan v. Vikram Singh Mann & Ors., CM (M) 37/2019

Citation: 2022 LiveLaw (Del) 138