Thursday, 31 January 2013
application under 1 rule 10 of cpc.
Who may be joined as defendants.
All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
Suit in name of wrong plaintiff
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.-
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended-
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: January 28, 2009
Date of Order: February 04, 2009
IAs No.8285/07, 8287/07 and 7756/08 in CS(OS) No.99/07
SHRI SUDHIR YADAV ... Plaintiff
Through: Mr. L.S. Rana, Adv.
SH. RADHEY SHYAM and ORS. ... Defendants
Through: Ms. Suman Chaudhary, Adv. for applicant
Mr. Awadhesh Kumar, Adv. for applicant/
Legal heirs of D-3 and D-6
IA No. 8285/07
1. This application under Order 1 Rule 10 CPC has been made by certain applicants to be impleaded
as defendants. However, the entire application does not disclose as to who were the applicants and who
wanted to be impleaded as a defendants. The application is accompanied by an affidavit of one Ms. Babita,
claiming to be mother and natural guardian of the applicants. She had not given the names of the
applicants. The application is liable to be dismissed for want of proper particulars and is hereby dismissed.
2. This application is under Order 1 Rule 10 CPC wherein a prayer has been made that the applicants
may be allowed to be impleaded as defendants. The application is signed by 3 persons as applicants and is
accompanied by affidavit of one Mr. Sanjay. The names of the persons sought to be impleaded as
defendants have not been disclosed in the entire application. However from the affidavit one can make out
that one of the applicants is Mr.Sanjay. The applicants want to be impleaded on the ground that under a
family settlement dated 22nd August, 2004, the share of defendant no.3 (1/8th share in the total land) was
further sub divided among 3 applicants and defendant no. 3 and each of them became owner of 1/32th share
and defendant no. 3 was no more owner of 1/8th share, therefore the 3 applicants were necessary parties to
the suit filed by the plaintiff against defendant no. 3 for specific performance of the agreement to sell. 3.
The agreement to sell relied upon by the plaintif is dated 10th October, 2006. In the agreement to sell,
defendant no. 3 is one of the signatories. There is no mention of any family settlement and defendant no. 3
has been stated to be owner of 1/8th share. The alleged family settlement relied upon by the applicant is an
unregistered family settlement, only a photo copy of which has been placed on record. Prior to filing of the
suit, the plaintiff had also served a notice on defendant no. 3 and another defendants. Even in reply to
notice, there is no mention of a family settlement between the family and defendant no. 3. It is obvious that
this plea of family settlement has been invented later on after the filing of this suit. I consider that the
applicants cannot be added as parties to a suit for specific performance of an agreement between the
plaintiff and other defendants including defendnat no.
3. Family members of defendant no. 3 cannot be impleaded as a party on the basis of an alleged
family settlement. They are neither necessary party nor proper party, neither their impleadment is necessary
for adjudication of the issues between the parties. The application is hereby dismissed. IA No.7756/2009 4. This application under Order 1 Rule 10 CPC has been made by Kundan Lal s/o Dalip Singh for his
impleadment as defendant in the suit. In the application, he has stated that the plaintiff and defendants no. 1
to 8 filed the present suit in connivance with each other with a motive to grab a residential plot of land
bearing khasra no. 105/134 in village Pandwala Kalan, New Delhi which fell in the share of the applicant in
an oral partition/family settlement during the lifetime of Sh. Dalip Singh. Applicant was in occupation of
this residential plot which was fully built up and he had water connection and electricity connection over it.
5. In the entire application, applicant has not stated what was the area of this plot and who other
persons were living in it. He had claimed that an oral partition was effected during lifetime of Sh. Dalip
Singh, his father and therefore he was a necessary party.
6. A perusal of agreement and documents show that the suit has been filed for specific performance
of the agreement to sell in respect of shares of Sh. Radhey Sham, Master Mahender Singh, Sh. Ishwar
Singh, Sh. Suraj, Sh. Bishamber Singh, Smt. Sarti and Sh.Kishan Chand. Sh. Dalip singh, the original
owner had 8 sons and each of his sons inherited only 1/8th share of his property. An agreement to sell was
entered into by 7 of the sons of Sh. Dalip Singh in respect of their 7/8th share and Sh. Kundal Lal is not a
party to the agreement and neither has entered into an agreement to sell with the plaintiff. I consider that
Sh. Kundal Lal who is not a party to the agreement to sell and whose share was not sought to be purchased
by the plaintiff, is not a necessary party. The application is liable to be dismissed and is hereby dismissed.
CS(OS) No.99/07 List on 26th March, 2009.
February 04, 2009 SHIV NARAYAN DHINGRA J.