Attesting Witness not a Necessary Party

The question of law involved in a judgment of the Kerala High Court titled Thavarayil Salim Vs. Thekkeveettil Karuvantevalappil Saru, 2011 (3) KLT 280 : 2011 (3) KLJ 348 : ILR 2011 (3) Ker. 376 : 2011 (3) KHC 100 was whether the plaintiff in a suit for specific performance of a contract for sale can seek to implead the attesting witness to the agreement as additional defendant in the suit, invoking Rule 10 (2) of Order I of the Code of Civil Procedure, on the ground that the witness is likely to deny the signature in the agreement.

The Hon’ble MR. Justice K.T. SANKARAN observed that an attesting witness to an agreement for sale is neither a necessary party nor a proper party to a suit for specific performance. Grant or refusal of the relief of specific performance of a contract for sale is not dependant on the presence of the attesting witness to the agreement as a party to the suit. So long as the right or liability of an attesting witness is not involved in the suit, he is neither a necessary party nor proper party to the suit.

Attesting witness to the agreement for sale

While dismissing the Original Petition the Court held that an attesting witness to the agreement for sale is not a person who would be affected by the decree. An attesting witness need not know the contents of the document. By reason of mere attestation of a document, it is not possible to attribute to an attestor the knowledge of the contents of a document.

(See Ganesh Bhandary V. Ambunhi: 1989 (2) KLT 882).

In order to decide whether the person concerned put his signature as an attesting witness in an agreement for sale, it is not necessary that he should be made a party to the suit for specific performance of the contract for sale. The apprehension of the plaintiff that while adducing evidence, the attesting witness may turn hostile and deny his signature in the agreement is not a ground to implead him as an additional defendant in the suit.

Sri.P.U.Shailajan, the learned counsel for the Petitioner submitted the following:

(a) If the supplemental defendant is impleaded, the plaintiff can serve interrogatories on her;

(b) The plaintiff can also take steps to compare her signature with admitted signatures;

(c) If the attesting witness denies her signature while giving evidence, the court would not be inclined to seek the assistance of an expert to compare her signature;

(d) Specimen signature of the attesting witness cannot be taken under Section 73 of the Evidence Act so long as she is not a party to the suit.

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.”

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.

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.

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