1. These two applications in revision by the plaintiff arise out of one and the same suit,—Title Suit 3 of 1959—which is pending before the 1st Court of Munsif at Dhanbad. In Civil Revision 337 of 1961, the sole question for determination is as to whether Hameshwar Lal Agarwala, opposite party 6, had rightly been added as a party to the suit against the wishes of the plaintiff. In Civil Revision No. 839 of 1961, the single question for determination is whether the Court below had acted illegally in issuing a commission after further proceedings in the suit had been stayed by this Court.

2. The circumstances leading up to the two cases may briefly be stated as below:

3. The plaintiff, which is a Private Limited Company, brought a suit against the District Board, Dhanbad and another, claiming certain reliefs against the defendants. Its case was that survey plots 575 and 612 of village Kirkend lying within 150 bighas of coal land belonging to the plaintiff were used as a lane by the people of Kirkend Bazar, but as the plaintiff was the Owner of the said lane and was maintaining and repairing the same at its own cost, the defendants had no right to cut earth to make a pucca road on portions of the said plots. This suit was instituted on 3-1-8959. After the filing of the written statement, issues were settled on 4-8-1959. About two years after the institution of the suit, a petition was filed by Rameshwarlal Agarwala, opposite party 6, on 4-2-1961 for being added as a party. This petition was stoutly opposed by the plaintiff on the ground that he had no right to be joined as a defendant in the suit. The learned Additional Munsif, however, in spite of the protest and strong objection of the plaintiff, added Rameshwarlal Agarwala, opposite party 6, as a defendant to the suit by his order dated 1-3-1961. Against the said order, the plaintiff has come up in revision in Civil Revision 337 of 1961.

4. Civil Revision 337 of 1961 was admitted on 3-5-1961, and pending the final hearing of the application further proceedings in Title Suit 3 of 1959 in the Court below were stayed. The Court below, on receipt of the order of stay from this Court, recorded an order on 19-5-1961 to the effect that the further proceedings of the suit were stayed till the disposal of Civil Revision 337 of 1961. On 19-7-1961, defendants 2 to 5 filed a petition to direct the plaintiff to repair the road in question, and, on its failure to do so, the District Board should be directed to get it repaired, as the road had become useless owing to heavy rains. When this matter was taken up on 2-8-1961 it was pointed out on behalf of the plaintiff that in view of the stay granted by this Court staying further proceedings, the petition of the defendants should be rejected. In spite of this, the Court ordered that necessary orders will be passed on 12-8-1961, but, meanwhile, the defendants should take out a commission for the purpose wanted by them. In pursuance of the said direction, defendants 2 to 5 filed a petition for appointment of a commissioner on 5-8-1961 and also deposited the necessary cost, whereupon the Court below appointed a pleader commissioner for holding local inspection and to report the construction of the road in question by 12-8-1961 positively, and, accordingly, the necessary writ was issued. The plaintiff, thereafter, moved this Court against the aforesaid order of 5-8-1961 appointing a pleader commissioner and obtained a rule in Civil Revision 839 of 1961.

5. In the aforesaid circumstances, the two cases arising between the same parties are being heard together, and, therefore, this judgment will govern them both. J will, however, take up these cases separately, as they deal with separate matters.

Civil Revision No. 337 of 1961:

6. Order I of the First Schedule to the Code of Civil Procedure lays down the rules regulating the joinder of parties. Sub-rule (2) of rule 10 of Order I empowers the Court, 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, inter alia, 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 questions involved in the suit, be added. It is not suggested in this Court, nor was it suggested in the Court below, that Rameshwarlal Agarwala was a person who ought to have been added as party defendant to the suit, or that his presence before the Court below was necessary in order to enable the Court effectually and completely to adjudicate upon all the questions involved in the suit. The Court below itself only says that “there is no harm if petitioner (i.e Rameshwarlal Agarwala) is added as defendant in the suit”. This, in my opinion, is not the correct approach.

7. The necessity referred to in Sub-rule (2) of rule 10 of Order 1 of the Code is for the purpose of enabling the Court effectually and completely to adjudicate upon and settle all the questions involved in a suit. It is obvious, therefore, that this sub-rule cannot be read as requiring that all persons who have or claim to have or who are likely to have any sort of right, title or interest in respect of any portion of the subject-matter of a suit should all be made parties. If it be borne in mind that the suit is by the plaintiff for certain reliefs against certain persons as defendants and that the judgments of Civil Courts, in such suits, are not judgments in them, then it follows that the questions involved in the suit are only questions with regard to the right set up and the relief claimed on the one side and denied or withheld on the other. The expression all the questions involved in the suit, therefore, can only be questions as between the parties to the litigation. It should be remembered that the application made in the Court below was one for joinder of a third party as a party defendant in the action. It is the plaintiff that comes to Court alleging a cause of action as against a particular defendant and asking for reliefs against him. The very basic principle of judgment inter parties 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 — per Srinivasa Ayyangar. J., in Sri Mahant Prayaga Doss Jee Varu v. Board of Commissioners for Hindu Religious Endowments, Madras, ILR 50 Mad 34 : (AIR 1926 Mad 836).

8. The question thus resolves itself Into this: Should the plaintiff in this case be compelled to litigate against not only the defendants of its choice, against whom it has prayed for reliefs consequent on certain declarations, but also against Rameshwarlal Agarwala (opposite party 6). against its wishes?

9. The only two cases in which a person may be added as a party to a suit under Sub-rule (2) of rule 10 of Order 1 of the Code are (1) when he ought to have been joined as plaintiff or defendant, and is not so joined, Or, (2) when, without his presence the questions in the suit cannot be completely decided. There is, therefore, no jurisdiction to add a party to a suit in any other case. Therefore, a person should not be added as a defendant merely because he would be incidentally affected by the judgment in the suit. There, however, even that is not the view of the trial judge.

10. The whole scheme of the Code of Civil Procedure seems to me to point to a suit being regarded as a suit for relief as against definite defendants, as a trial being one only as between the parties and an adjudication as one only binding them. The defendant to be added must be a defendant against whom the plaintiff has some cause of complaint, which ought to be, determined in the action, and, Rule 10(2) of Order 1 of the Code never intended to apply where the person to be added as defendant is a person against whom the plaintiff has no claim, and does not desire to prosecute any. It is obvious, therefore, that, in many cases, if the contention, put forward on behalf of Rameshwarlal, opposite party 6, the newly added defendant, that he was a proper party, and, as such, he has rightly been added, is right, then the provisions of sub-rule (2) of R. 10 of Order 1 of the Code might be used in a manner exceedingly harassing to plaintiffs; by forcing them to include in their actions persons against whom they do not seek to proceed and to mix up their rights as against one person, with questions of a highly complicated nature arising between themselves and the others. It is quite clear, therefore, that the court ought not to bring in any person as defendant against whom the plaintiff does not desire to proceed unless a very strong case is made out, showing that in the particular case justice cannot be done without his being brought in: Norris v. Beazley, (1877) 2 C.P.D 80, which was relied upon in Prayaga Poss Jee Varu's case, ILR 50 Mad 34 : (AIR 1926 Mad 836) (supra), with which I express my cordial assent.

11. On a proper construction of Sub-rule (2) of rule 10 of Order 1 of the Code, therefore, I feel constrained to hold that a plaintiff cannot be compelled to add a person as a party defendant against his wishes and such a person cannot be added as a party defendant, and he cannot be compelled, in spite of his protest, to fight the litigation against such a person against his choice. Where a person is neither a necessary nor a proper party, the Court has no jurisdiction to add him as a party under Sub-rule (2) of rule 10 of Order 1 of the Code. A person who is even only indirectly or remotely interested is not a necessary party.

12. The above view was taken also by Reuben, J., sitting singly, in Civil Revn. No. 880 of 1947, Ramnandan Singh v. Bineswari Singh, D/- 7-9-1948 (Pat). In, that case also, His Lordship was considering, inter alia, the question whether the petitioner there could insist on being added as a defendant. The decision of Srinivasa Ayyangar, J. in Prayaga Poss Jee Varu's case, ILR 50 Mad 34 : (AIR 1926 Mad 836) (supra), was followed.

13. The above decision of Reuben, J. was followed, subsequently, first, in Jugal Singh v. Mahabir Tewari, Civil Revn. No. 158 of 1953, decided by R.K Choudhary and Payal, JJ. on 6-12-1956 (Pat), in which case, however, the question was of impleading a person, who claimed a paramount title, in a mortgage suit, and, next in Bhurunga Uraon v. Mosstt. Somri Urain, Civil Revn. No. 698 of 1954, decided by C.P Sinha and Payal, JJ. on 25-9-1957 (Pat).

14. On a review of the above authorities, it is manifestly clear that the petitioner here cannot be compelled to add opposite party 6 as a defendant to its suit against its choice and wishes.

15. Tested in the light of the above cardinal principles, therefore, the result of impleading Rameshwarlal Agarwala would be that the Court may be called upon to decide the question between the plaintiff and the intervenor defendant, although the original parties to the suit do not want such an adjudication. The result would be far from avoiding litigation, to involve the Court in deciding a dispute regarding title of the intervenor, in which the plaintiff and the original defendants are not at all interested. If Rameshwarlal Agarwala wishes to get an adjudication as to the title between himself and present plaintiff, he has his own right and it is open to him to institute a suit therefor. Put there is no reason why he should be impleaded as a co-defendant, particularly when he is not wanted by the plaintiff. Here, the trial Judge does not say that Rajneshwarlal Agarwala, opposite party 6, is either a necessary or proper party to the suit. There seems, therefore, to be no reason why he should be impleaded as a co-defendant.

16. Each case has to be decided on its own merit. On the facts of the present case, in my view, it would not be a proper exercise of jurisdiction to add opposite party 6, at his request, as defendant to the suit, and, thereby unnecessarily to prolong the investigation in the case about till and possession. Further, the application for being added as a party was made nearly about two years after the institution of the suit. The decree in the suit of the plaintiff will not bind opposite party 6, when be is not a party to the suit. For these reasons, the order of the Court below dated 1-3-1961, adding opposite party 6, Rameshwarlal Agarwala, as a defendant to the suit, against the wishes of the plaintiff, must be set aside.

17. The application, therefore, succeeds and, is allowed, and, the rule is made absolute.

Civil Revision 839 of 1961.

18. It is well-settled that an order by a superior Court staying further proceedings in the Court below becomes operative the moment it is made and not after its communication to the subordinate Court. Where, therefore, an order is made by the superior Court, be it the appellate Court or the revisonal Court, staying further proceedings in a case in the Court below, subordinate to it, it suspends the power of the lower Court to continue the proceedings in such a case. If, in spite of file stay of further proceedings in the Court below by the superior Court, some order is passed by the Court below, in violation of the stay order in operation, such an order is without jurisdiction.

19. In the instant case, on the facts stated before, the Court below knew of the stay Order passed by this Court and its attention was also drawn to that fact, but, in spite of having knowledge of the same, it issued a commission, as prayed for by defendants 2 to 5, which obviously it could not do when the stay order was in force. For these reasons, the order of the Court below issuing commission on 5-8-1961 must be set aside. This application also, therefore, succeeds and is allowed, and the rule is made absolute, and the impugned order of the Court below is set aside. The petitioner will be entitled to its costs in Civil Revision No. 837 of 1901 against Rameshwarlal Agarwala, opposite party 6, who alone has contested this application. In Civil Revision 839 of 1961, the petitioner will be entitled to costs of this application against defendants 2 to 5, who are Opposite party 2 to 5 of this application. Hearing fee in each case will be Rs. 32/-.

DF/D.R.R

20. Rules made absolute.