Plaintiff Is 'Dominus Litis'; High Court Cannot Direct Impleadment Of Additional Defendant In Suit : Supreme Court

The Supreme Court has disapproved the approach taken by a High Court in setting aside a decree in a suit and remanding the same for fresh trial after directing the plaintiff to implead a party as an additional defendant in the suit.

The Top Court reminded that the plaintiff is the "dominis litis"(master of the suit), who is entitled to decide who all should be added as parties in the case.

The issue arose out of a money suit filed by IL & FS Engineering and Constructions Company against M/s Bhargavarma Constructions and others. The suit was decreed by the trial court.  The defendants challenged the decree in appeal before the High Court. The defendants contended that another party A.P. Transco and MAYTAS Infra Pvt. Ltd had executed the subject contract work and hence it was liable to pay the sums. With this argument, the defendant filed an application to implead AP Transco as a party in the appeal.

The High Court set aside the judgment and decree passed by the trial court and remanded the matter to the trial court with a direction to the trial court to decide the suit afresh after affording an opportunity to the impleaded party to lead evidence in the suit.

Challenging this, IL&FS approached the Supreme Court by way of appeal. The Supreme Court noted that the High Court had not given any reasons to conclude why AP Transco was necessary to be impleaded. No issue regarding non-joinder of parties was raised before the trial court. The defendant raised the plea for the first time in appeal before the High Court.

A bench comprising Justice MR Shah and Justice BV Nagarathna noted

"This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court. Nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. The High Court has not only directed to implead the A.P. Transco as party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant –original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on non-joinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the  trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court"

"There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and/or expressing anything on merits in the appeal on an impleadment of a party in an appeal. We strongly disapprove the manner in which the High Court has disposed of the appeal. How to deal with and decide a first appeal under Section 96 and Order XLI Rule 31 of the CPC has been dealt with by this Court in a catena of decisions".

Accordingly, the Supreme Court set aside the High Court judgment and remanded the appeal back to it for fresh consideration on merits.

Case Title : IL & FS Engineering and Constructions Company vs M/s Bhargavarma Constructions and others

Citation : LL 2021 SC 748

Click here to read/download the judgment