Third-Party Impleadment: Order 1 Rule 10 of C.P.C. Explained

Third-Party Impleadment : Introduction

It often happens that when there is a legal dispute, it is affecting a third party either directly or indirectly. When a suit is filed in the court, sometimes the party, despite not being part of that case, get impleaded in the suit and sometimes, despite being affected by the dispute, the third party is not impleaded in the suit. To tackle such situations, Order 1 Rule 10 of the Code of Civil Procedure, 1908 (herein after referred as C.P.C.) comes into play.

Order I of the C.P.C. deals with parties to the suit. Order I Rule 10(2) of C.P.C, empowers the Court to strike out the name of any party improperly joined whether as plaintiff or defendant and also when the name of any person ought to have been joined as plaintiff or defendant or in a case where a person 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. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter and also to avoid multiplicity of proceedings.[1]

Can a third-party file for impleadment?

The very basic principle of judgment inter partes is that the judgments are not judgments in rem but declaratory and operative only as between them. The plaintiff being generally dominus litus, I fail to see on what principle of justice he can be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law.[2] This basically means that a person who is not a party has no right to be impleaded against the wishes of the plaintiff. Just because plaintiff does not choose to implead a person is not sufficient for rejection of impleadment application of the third party. The third party can be impleaded by himself if any injustice is caused to him from the outcome of the suit.

This is possible on the discretion of the court under Order I Rule 10 (2) of C.P.C. It is only if a party is a “necessary party” or a “proper party” that they can be directed by the Court to be joined in the proceeding. If a person is not found to be a necessary or proper party, the Court has no jurisdiction to order impleadment against the wishes of the plaintiff.

In Mumbai International Airport v. Regency convention Centre[3], the Hon’ble Supreme Court observed that:

The general rule in regard to impleadment of parties is that the 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. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of C.P.C., which provides for impleadment of proper or necessary parties.

Necessary and Proper parties to the Suit

Necessary party, as the name suggests, is an integral part to the suit. It is the party against whom the relief is sought. In the absence of the necessary party neither any relief claimed can be granted nor any other order can be passed by the court. For example, in a suit of specific performance of a contract of sale, the parties to the contract or in their absence their legal representatives would qualify as a necessary party to the suit. Also, it is not necessary that a proper party should be a necessary party. Proper parties are those whose presence might be fundamental so as to completely, effectively and properly adjudicate upon the dispute of the suit.

A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.[4]

In the Case of Kasturi v. Iyyamperumal and Ars.[5] The apex court discussed over necessary party and said that:

Two tests are to be satisfied for determining the question who is a necessary party. Tests are- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.

In order to determine whether a person is a necessary party to a suit or not some factors has to be taken into consideration. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. the question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.[6]

In Case of Somasundaram Chettiyar and Ors. v. Balasubramanian[7], Madras High Court observed that:

“A person does not become a necessary party merely because he has some evidence relevant to the case on hand. A necessary witness is different from a necessary party.”

In the case of Antony Devaraj And Anr. vs Aralvaimozhi (Kurusadi)[8], the Hon’ble Madras High Court considered the right of a third party to claim addition of party. It was held as follows:

“A person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit. Moreover, Persons whose interest would be affected by the litigation are entitled to come on record to protect their interest when those are jeopardized by the persons already on record.”

In the case of Razia Begum Vs. Anwar Begum[9], the Hon’ble Apex court laid down that:

“That the question of addition of parties under Order 1 Rule 10 of the C.P.C., is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code”

Again, in the case of Mumbai International Airport v. Regency convention Centre[10], the Hon’ble Apex court iterated certain exercise of discretion for adding of parties as a necessary party. It stated that:

If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.

Conclusion

Therefore, it can be summed that in a suit the plaintiff is considered as dominus litus i.e., master of the suit. Being master of the suit, plaintiff may choose the parties against whom he has dispute. He cannot be forced to litigate against any party he choose not to. However, there is scope of impleadment under Order I Rule 10(2) C.P.C. which gives court the discretionary power to add or remove party of the suit. While exercising this discretion right the court has to take into account the wishes of the plaintiff with respect to addition of third party as defendant. Yet if a third party is likely to suffer injustice from the end-result of the lawsuit, he is entitled to file for impleadment. When the court thinks that it is absolutely necessary to add a third party in order to adjudicate the dispute between the parties effectively, properly and completely then the court may do so even without the consent of the plaintiff.

Extra Case

In the case of S.KRISHNAN v. RATHINAVEL NAICKER  it has been held as follows:-

“In a nut-shell, the tests to be applied for determining the right of a party to implead another, in a pending suit or other proceeding, may be crystallized into the following categories:

(a) If without his presence, no effective and complete adjudication could be made;
(b) If his presence is necessary for a complete and effectual adjudication of the dispute through no relief is claimed against him;
(c) If there is a cause of action against him;
(d) If the relief sought in the suit or other proceedings is likely to be made binding on him;
(e) If the ultimate outcome of the proceedings is likely to affect him adversely;
(f) If his role is really that of a “necessary witness” but is sought to be camouflaged as a “necessary party”;

References :

[1] Dhanasundari v. A.N. Umakanth 2006 (5) CTC 440
[2] Sri Mahant Prayaga Doss Jee Varu v. The Board of Commissioners for Hindu Religious Endowments, madras, The Secretary of State for India in Council (1927) ILR 50 MAD 34
[3] AIR 2010 SC 3109
[4] Ramesh Hiranand Kundanand v. Municipal Corporation of Greater Bombay and others 1992 T.L.N.J. 14 (S.C.); N.Viswamitra and others v. Yadav Sadashiv Mule and others 2004 (8) S.C.C. 706; Ruma Chakraborty v. Sudha Rani Banerjee (AIR 2005 S.C. 3557)
[5] LQ 2002 HC 9356
[6] Nachammal v. Lavangammal (2006 (3) C.T.C. 543)
[7] 1998 (1) C.T.C. 626
[8] (2004) 2 MLJ 111
[9] AIR 1958 SC 886
[10] AIR 2010 SC 3109