The power under sub rule (2) of Rule 10 of Order I can be exercised either suo motu or on application. That power can be exercised either to strike out or add parties. Addition of parties can be at the instance of the plaintiff or at the instance of a person who is not party to the suit. The plaintiff may seek to implead a person as additional defendant who is either a necessary or proper party.
# Sub Rule (2) of Rule 10 of Order I of the Code of Civil Procedure reads thus:
“(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.”
Sometimes, the defendant may raise a contention that a person has interests in the subject matter of the suit and that his interests would be affected if a decree were to be passed. The defendant may, in some cases, raise a contention that a person is a necessary party and without impleading him, the suit is not maintainable. In such cases, the plaintiff may make an application to implead such proper party or necessary party, as the case may be. Such an application would, normally, be allowed by the court, unless the court finds that presence of such person is not necessary at all.
In some cases, a person who is not a party to the suit, may apply to the court to implead him as an additional defendant stating that he would be affected by the decision that may be taken in the suit. If the court finds that he is a necessary party or proper party, he would be impleaded as an additional defendant. The person sought to be added should have a direct interest in the subject matter of the suit.
The yardstick to be applied while considering an application filed by the plaintiff to implead an additional defendant may not be the same while considering an application by a person who wants to get himself impleaded against the wishes of the plaintiff. The plaintiff is the dominus litis. Normally he would not be compelled to fight a litigation against a person with whom he does not want to fight and from whom he does not want to get a relief.
But the court may, even against the wishes of the plaintiff, add such person as an additional defendant, if the court finds that he is a necessary party and he ought to have been joined as a party to the suit. The court may also allow a third person to come on record as an additional defendant if his rights are likely to be affected by the decree that may be passed in the suit and 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.
If the plaintiff arrays an unnecessary person as a defendant, such defendant may apply to strike out his name on the ground that he was improperly joined as a defendant. The striking out or adding of parties is in the realm of judicial discretion of the Court, which will be exercised in the light of the principles underlying sub rule (2) of Rule 10 of Order I CPC.
# In the matter of addition of parties, Rule 10 (2) of Order I CPC consists of two parts:
(1) adding the name of a person who ought to have been joined, whether as plaintiff or defendant; or
(2) adding the name of a person 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.
The purpose and intent of the sub- rule is clear. In the first category mentioned above, the Court will not decide a case on the merits without the presence of the person, in whose absence the case cannot be decided at all. Such person is a necessary party to the suit. Even though a person is not a necessary party, but his presence would enable the Court effectually and completely to adjudicate upon and settle the questions involved in the suit, such person can be impleaded as a proper party.
The second category mentioned above pertains to proper parties. When a person is neither a necessary party nor a proper party, the Court would not allow him to be added as a party to the suit. The scope of the suit cannot be enlarged and questions which are not involved in the suit cannot be decided, simply by adding parties. Such addition of parties is not contemplated under sub rule (2) of Rule 10 of Order I.
Adjudication of matters which should be decided and settled in a separate suit between any of the parties in the suit on the one hand and a third person on the other, is not the object of addition of a party under sub rule (2) of Rule 10 of Order I C.P.C.
[The above discussion on Order I Rule 10 (2) is extracted from a significant judgment of the Kerala High Court in Thavarayil Salim Vs. Thekkeveettil Karuvantevalappil Saru, 2011 (3) KLT 280 : 2011 (3) KLJ 348 : ILR 2011 (3) Ker. 376 : 2011 (3) KHC 100]