O 1 R 10 CPC | Plaintiff Is 'Dominus Litis', Can't Be Compelled To Add A Defendant In Suit : Supreme Court

The Supreme Court on Monday (January 5) dismissed a litigant's plea to be included as a defendant in the suit, stating that the plaintiff, being master of the suit, cannot be compelled to sue a party against whom no relief is claimed.

“This apart, the respondent Nos.1 and 2 (plaintiffs) who have instituted the suit are dominus litis and it is for them to choose their adversaries. If they do not array the proper and necessary parties to the suit, they do it at their own risk. However, they cannot be compelled to add a party to defend a suit against their wishes.”, observed a bench of Justices Pankaj Mithal and Prasanna B. Varale, while upholding the Bombay High Court's decision which set aside the trial court's order impleading the Appellant as defendant in a money recovery suit despite neither being a necessary party nor a proper party.

This was a case where the original suit was instituted by the legal heirs of the property owner against M/s Kishore Engineering Company, a partnership firm, seeking recovery of unpaid service charges for furniture and fixtures in a commercial premise in Mumbai. The firm was occupying the premises as a sub-tenant.

NAK Engineering Company Pvt. Ltd. subsequently moved an application under Order I Rule 10 of the Code of Civil Procedure, 1908, claiming that it was the “successor company” of the partnership firm under Part IX of the Companies Act, 1956, and was now in occupation of the premises. While the trial court allowed the impleadment in 2018, the Bombay High Court set aside that order in 2022 in proceedings under Article 227 of the Constitution, prompting the Appellant to move to the Supreme Court.

Dismissing the appeal, the judgment authored by Justice Mithal, relying on Kasturi v. Iyyamperumal, (2005) 6 SCC 733 reiterated that a necessary party is one without whom no effective decree can be passed, while a proper party is one whose presence may be helpful for complete and effective adjudication.

Applying the law, the Court found the Appellant neither a necessary party nor a proper party, stating that the suit is a simple money claim for recovery of service charges against a specific entity. It added that an effective decree can be passed in the absence of the appellant, concluding that the Appellant was not a necessary party.

“In the case at hand, the respondent Nos.1 and 2 are not claiming any relief against the appellant. There is no iota of material to indicate that the relief, as claimed in the suit against respondent No.3, if granted, would be implemented against the appellant. Therefore, the appellant is not a necessary party to the suit.”, the court said.

“The appellant cannot also be construed as a proper party once it has failed to establish that it is a successor to the respondent No.3. In the absence of any evidence to prove that respondent No.3 has ceased to exist or cannot be represented in the suit on its own to contest it on merits, we are of the opinion that the appellant is not even a proper party to provide any assistance to the court in the suit.”, the court added.

The appeal was dismissed.

Headnote

Civil Procedure Code, 1908 – Order I Rule 10 – Impleadment of Parties – Necessary vs. Proper Party – Dominus Litis – Suit for recovery of service charges – Twin Tests for Necessary Party – Held: A plaintiff is the dominus litis and cannot be compelled to add a third person as a defendant against their wishes unless that person is a necessary party without whom no effective decree can be passed - In a suit for recovery of service charges against a partnership firm, a third-party company claiming to be a "successor" is not a necessary party if the plaintiff seeks no relief against them and the original firm continues to exist- Held: To be a "necessary party," two tests must be satisfied: (1) there must be a right to some relief against such party in respect of the controversies involved; and (2) no effective decree can be passed in their absence - A "proper party" is one whose presence enables the court to adjudicate completely, even if no decree is made against them.

Constitution of India – Article 227 – Supervisory Jurisdiction – Interference with Interlocutory Orders – Held: While the High Court's jurisdiction under Article 227 is supervisory and it should generally not intervene in interlocutory orders like impleadment, the Supreme Court will not restore an incorrect Trial Court order if the High Court has rightly interfered to prevent an illegality – Held that an impleadment application filed nearly nine years after acquiring knowledge of the suit (as evidenced by the applicant's seal on the original summons) is liable to be rejected on the ground of silence and delay. [Relied on Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Kasturi v. Iyyamperumal, (2005) 6 SCC 733; Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417; Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384; Paras 33-44]

Cause Title: NAK ENGINEERING COMPANY PVT. LTD. VERSUS TARUN KESHRICHAND SHAH AND ORS.

Citation : 2026 LiveLaw (SC) 5

Click here to download judgment

Appearance:

For Petitioner(s) : Mr. Chander Uday Singh, Sr. Adv. Mr. Amarjit Singh Bedi, AOR Ms. Surekha Raman, Adv. Mr. Harshit Singh, Adv. Mr. Sidharth Nair, Adv. Mr. Shreyash Kumar, Adv. M/S. K J John And Co, AOR

For Respondent(s) : Mr. Abhinav Chandrachud, Adv. Mr. Surjendu Sankar Das, AOR Ms. Annie Mittal, Adv. Mr. Janay Jain, Adv. Ms. Yugandhara Pawar Jha, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR