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Whether court can permit third party to be added as party in the suit?

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 1306 of 1999

Decided On: 09.08.2000

Gulab Babusaheb Bargiri
Vs.
Executive Engineer, Maharashtra State Electricity Board and Ors.

Hon’ble Judges/Coram:T.K. Chandra Shekhara Das, J.

Citation: 2001(1) MHLJ 63

1. Rule. By consent rule made returnable forthwith. Heard both sides.

2. This Civil Revision arises out of the order passed by the 2nd Jt. Civil Judge, Jr. Division, Ichalkaranji dated 12-2-1999 whereby the respondents were impleaded on their own accord. The respondent has contended before the Court that though the reliefs sought in the suit being related to electricity connection only against the State Electricity Board, the plaintiff traced out his right that emanates from disconnection by the Electricity Board of the connections which the plaintiff was using. In other words, the Electricity Board had disconnected the electric connection belonging to the respondents, who were newly impleaded.

3. Plaintiff has tried to make out a case in the plaint that his cause of action arises from the act of disconnection of electricity connection which made the plaintiff to apply for fresh electric connection independently. In this context, the respondent approached the trial Court voluntarily and prayed that they may also be heard in the suit. The trial Court after considering the contentions of the plaintiff and respondents allowed the said application. It is this order that is challenged in this revision. The learned Counsel for the petitioner has contended that respondent Nos. 3 and 4 are not necessary party and no relief has been sought against them in the suit, and therefore, their application for impleadment ought to have been dismissed by the Court below.

4. Mr. Kumbhakoni, Counsel for the petitioner elaborates his contention submitting that the plaintiff is dominus litus and without his concurrence no party should be impleaded. He has also cited a decision of the learned Single Judge of this Court in Jivanlal Damodardas Wani v. Narayan Ukha Sali, reported in MANU/MH/0066/1972 : AIR1972Bom148 . This Court in that judgment had laid down certain guidelines for impleadment of the party litigant in the suit. In fact, that judgment relates to the impleadment at the instance of the defendant who raised a contention in the written statement that the particular person is necessary party to the suit and in that context the Court has laid down guidelines. In the facts of that case, I fully agree to the conclusion reached in that case; but I beg to disagree certain observations made by the learned Single Judge. It appears that the learned Judge has undertaken the task of construing the meaning and content of Order 1, Rule 10 of Code of Civil Procedure. It is said in the guideline No. 3 that in exercise of discretion of Order 1, Rule 10 of Code of Civil Procedure the Court would not ordinarily add the party without concurrence of the plaintiff because the plaintiff is dominus litus as far as litigation in question is concerned. From this it would follow that it is only in exceptional cases that a party would be added as party defendant without the concurrence of the plaintiff. This decision is rendered in 1972. Much water has been flown under the bridge after the decision is rendered. After this judgment, in 1977, amendment was brought to the Code of Civil Procedure and added a provision Order 1, Rule 8-A which reads as under :

“8-A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.—While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.”

5. By the above amendment, the Parliament has widened the scope of locus in tune with changing times. Courts were also relaxing the rigid rule of locus in the interest of justice.

6. Impleadment of a third party in a suit is an attribute of principle of natural justice. After Maneka Gandhi v. Union of India MANU/SC/0133/1978 : [1978]2SCR621 , the principle of natural justice has undergone a sea change. In Maneka Gandhi’s case it has been held that equality and arbitrariness are sworn enemies. Wherever, an action of both administration and quasi judicial does not conform to the principles of natural justice, it is held to be tainted with arbitrariness which offends Article 14 of the Constitution of India. The Supreme Court in Maneka Gandhi v. Union of India (supra) in Para 58 held thus:

“58. ……….Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action Lord Morris of Borth-y-Gst spoke of this rule in eloquent terms in his address before the Bentham Club.

“We can, I think, take pride in what has been done in recent period and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural fairness are shown. Dels natural justice qualify to be described as a “majestic” conception ?
I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ?
I believe that it is very much more. If it can be summarised as being fair play in action who could wish that it would ever be out of action ?
It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration.”

(Current Legal Problems, 1973, Vol. 26 p. 16). And then again, in his speech in the House of Lords in Wiseman v. Borneman 1971 A.C. 297 the learned Law Lord said the words of inspired felicity :

“that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely and acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What then comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only “fair play in action.” Nor do we wait for direction from Parliament. The common Law has abundant riches; the may we find that Byles, J., called “the justice of the common law.” Thus, the soul of natural justice is fair play in action and that is why it has received widest recognition through out the democratic world.”

7. Without much difficulty one can see that concept of locus standi and principle of natural justice are closely intertwined that one cannot be separated from another as the opportunity of being heard is the main attribute of locus standi. When a third party approaches Court with contention that he is interested in the subject matter of the suit or in the dispute between the plaintiff and defendant, the Court shall ordinarily give an opportunity to such a party to put his case. It may be remembered that a third party is coming to the Court on his own risk, whereas a party sought to be impleaded at the instance of the defendant is dragged on to the litigation without his will. These two incidents are therefore entirely different and require different treatment at the hands of the Court. Therefore, observation made by the Single Judge that for all impleadment the plaintiff is dominus litus cannot be applied in all cases. Of course, it can be applied where the defendant insisted in the written statement or in his reply that the particular person is necessary party and the plaintiff can resist the impleadment because he is dominus litus and he can decide who is to be the necessary party. In such an event, he is taking the risk of suit being thrown out in the absence of the necessary party. But in the case of impleadment of third party who approaches the Court and says that he is vitally interested in the dispute that is going on between the plaintiff and defendant, and therefore, he may be given an opportunity of being heard, naturally consistent with the principle of natural justice and fair play, the Court will not refuse his impleadment, unless the Court feels that he is totally a stranger and unless the Court feels that it is employing a delaying tactics.

8. Coming to the facts of this case, it is stated in the plaint that there was a suit filed against the respondent Nos. 3 and 4 by the plaintiff as Suit No. 543/89 and that suit was on account of the disconnection of the electricity connection which is in the name of respondent Nos. 3 and 4 through which connection the plaintiff was running power loom. So the entire cause of action arose from the disconnection of the electricity connection standing in the name of the respondent Nos. 3 and 4. That suit was dismissed on merit by the judgment dated 7-9-1998. It is after that, the present suit has been filed. In this suit also, in the body of the plaint, the history of the litigation was narrated. In the column of cause of action it is stated like thus:

“Initially, when the defendants herein on 5-11-98 discontinued the electricity supply and on 19-11-98 when by the letter of that date refused to start the electricity supply and thereabout.”

9. The plaintiff has clearly stated that the cause of action arose on 5-11-1998 when the (sic) disconnection of the electricity connection standing in the name of respondent Nos. 3 and 4 was discontinued. Therefore, in all trappings of the litigation, it appears that it is continuation of litigation of Suit No. 543 of 1989. In Suit No. 543 of 1989, defendant Nos. 3 and 4 were made party by the plaintiff himself and cause of action arose in this suit also is the same cause of action which was arisen in the earlier suit. It is in this factual context that the respondent has approached the trial Court and filed impleading application saying that they are vitally interested in the suit. Therefore, in the facts and circumstances of the case, I find no illegality in allowing impleadment of the respondent Nos. 3 and 4. Hence no interference is called for.

10. The learned Counsel for the petitioner however submits that he is going to amend the plaint and delete the cause of action portion which has been extracted above and he will maintain the suit by his own right against the defendant Electricity Board. I may observe in this context that if the plaintiff files such application for amendment of the plaint with regard to the cause of action, the trial Court may re-consider the amendment application filed by the respondent Nos. 3 and 4 and review the order impugned in this case and pass appropriate order. I make it clear that if the plaintiff wants to amend the plaint, he may do so within one month from the date of receipt of this order.

11. With above observations, this revision application is disposed of. Rule discharged accordingly with no orders as to costs.

12. Parties to act on the ordinary copy of the order authenticated by the Sheristedar of this Court. P.A. to issue ordinary copy of this order.

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