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Addition of Parties under Order 1 Rule 10 CPC

  • That the question of addition of parties under r. 10 of O. I of the Code of Civil Procedure, 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 contra distinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in s. 115 of the Code.
  • That in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation.
  • Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy.
  • The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of ss. 42 and 43 of the Specific Relief Act.
  • In cases covered by those statutory provisions the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission.
  • The result of a declaratory decree on the question of status such as in controversy in the instant case affects not only the parties actually before the court but generations to come, and, in view of that consideration, the rule of ‘present interest’ as evolved by case law relating to disputes about property does not apply with full force.
  • The rule laid down in s. 43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrower in one sense and wider in another.

The Supreme Court of India in Razia Begum Vs. Sahebzadi Anwar Begum, AIR 1958 SC 886 : 1959 (1) SCR 1111 : 1958 SCJ 1214 : 1958 (2) MLJ (SC) 193 : 1958 (2) AnWR (SC) 193 : 1958 MysLJR 761 held that the court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant, if the court has reason to insist upon a clear proof apart from admissions.

Facts of the Case

The appellant instituted a suit against the third respondent, inter alia, for a declaration that she was his lawfully married wife, alleging that though the fact of her marriage was known to all who knew him, he was trying to suppress the facts in such a way that the members of his family should conclude that she was not his Nikah wife, that he refused to openly acknowledge her as his legally wedded wife and that this conduct on his part had cast a cloud on her status as such wife and was affecting the rights of the issue of the marriage, her three daughters.

The third respondent filed his written statement admitting the claim, but on the same date respondents 1 and 2 made an application under 0. i, r. 10(2), of the Code of Civil Procedure for being impleaded in the suit as defendants on the grounds that they were respectively the wife and son of the third respondent, that they were interested in denying the appellant’s status as wife and the status of her children is the legitimate children of the third respondent, that the suit was the result of a collusion between the appellant and the third respondent and that if the appellant was declared to be lawfully wedded to the third respondent, the rights and interests of respondents 1 and 2 in the estate of the third respondent would be affected.

The application was contested by both the appellant and the third respondent. The trial court allowed the application and the order was confirmed by the High Court in its revisional jurisdiction.

Addition of Parties

The question was whether the lower courts did not exceed their powers in directing the addition of respondents 1 and 2 as parties-defendants in the action.

The Apex Court held (per Sinha and Kapur jj. Imam J., dissenting), that in view of the averments in the plaint which showed that not only the third respondent but the other members of his family, including respondents 1 and 2, were interested in denying the appellant’s status as a legally wedded wife, respondents 1 and 2 were proper parties to the suit.

The question of addition of parties under O. I, r. 10, of the Code of Civil Procedure is generally not one of initial Jurisdiction of the court, but of a judicial discretion ; in a suit for a declaration as regards status or a legal character under S. 42 Of 1112 the Specific Relief Act, the rule that in order that a person may be added as a party he must have a present or direct interest in the subject-matter of the suit, is not wholly applicable, and the rule may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy.

In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission.

A declaratory judgment in respect of a disputed status will be binding not only upon the parties actually before the court but also upon persons claiming through them respectively, within the meaning of s. 43 Of the Specific Relief Act.

The word ” respectively ” in the section has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned.

Per Imam J.

The facts of the present case do not justify the addition of respondents 1 and 2 as defendants under the provisions of 0. i, r. 1O(2), of the Code of Civil Procedure, because..:-

(1) There is nothing in the pleadings to suggest that respondents 1 and 2 were denying the appellant’s status as wife of the third respondent, and the court ought not to compel the plaintiff to add parties to the suit where on the face of the pleadings plaintiff has no cause of action against them.

(2) Under the Mohammedan law a man is entitled to have four wives at one and the same time and, consequently, as the third respondent has admitted that the appellant was married to him, respondents 1 and 2 have no locus standi to make any representation in the suit that there was collusion between the appellant and the third respondent.

(3) During the lifetime of the third respondent neither the appellant nor her children on the one hand nor respondents 1 and 2 on the other have any rights in his estate, under the Mohammedan law.

(4) Assuming that a declaration in the suit would be binding upon respondents 1 and 2, which is doubtful having regard to the terms of S. 43 of the Specific Relief Act, that would be no justification for their being impleaded in the suit where the issue is not one of inheritance but one of marriage between the appellant and the third respondent.

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