Order 1 Rule 10
The Court may strike out or add parties under Order 1, Rule 10, CPC. Order 1 Rule 10 CPC read as under:
“10. Suit in name of wrong plaintiff. – (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may stirke 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.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4)Where defendant added, plaint to be amended.-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”
Applicability of Order 1 Rule 10 C.P.C., in different cases
(i) Sec.92 C.P.C., proceedings:- It is open to a court to add a party as defendant in a suit under Sec.92 C.P.C., just as in any other suit. Its right to sue is regulated by Order 1, Rule 10 C.P.C.
(ii) Partition Suit:- In a suit for partition the principle of Dominus litus is not strictly applicable since the plaintiff and also the defendants will be sharers.
(iii) Specific performance suit:- The plaintiff who has filed the suit for specific performance of the contract for sale is Dominus litus and cannot be forced to add 7 parties against whom he does not want to fight unless it is a compulsion of the rule of law.
(iv) Execution petition:- In Changanti Lakhmi Rajyam and others vs., Kolla Rama Rao reported in 1998(1) ALD 497 the Division Bench of Hon’ble A.P., High Court held that Order 1 Rule 10 C.P.C., is applicable to suits and appeals and not applicable to the execution proceedings. The heirs of J.Dr., if any will have to agitate Under Order 21 Rule 58 or Rule 101 C.P.C.,
(v) Cause of action:- In Mohannakumaran Nair vs. Vijayakumaran Nair reported in AIR 2008 SC 213 the Hon’ble Apex court observed that Application of doctrine of Dominus litus is confined only to the cause of action which would fall within Sections 15 to 18 of the Code of Civil Procedure. It will have no application in a case where the provision of Section 20 thereof is sought to be invoked.
Draft of an application under Order 1 Rule 10 read with Section 151 C.P.C. for impleadment as defendant
IN THE COURT OF……………………………………………………………………
Suit No……..
In Re:
Shri/Smt……………….. Plaintiff
Versus
Shri/Smt……………….. Defendant
Next of Date of Hearing:-……………………………………
APPLICATION UNDER ORDER 1, RULE 10 READ WITH SECTION 151 C.P.C. ON BEHALF OF SHRI…………S/O, SHRI…………R/O………………………… FOR IMPLEADMENT AS DEFENDANT IN A PENDING SUIT FOR POSSESSION
Sir,
It is respectfully submitted as under:
1. That the above noted suit is pending disposal before this court wherein the next date of hearing is…………….
2. That in the aforesaid matter, the plaintiff has made only one person as defendant and has failed to make the applicant as defendant although the applicant is necessary party in the proceedings.
3. That the Plaintiff has filed the suit for possession against defendant when defendant is only co-owner of the suit property and not the absolute owner.
4. That as the applicant is the co-owner along with defendant and as such a necessary party in the proceedings as plaintiff has filed a false suit for possession against the other co-owner only who is working in conspiracy and collusion with the plaintiff and thereby in case the possession is given to the plaintiff of the suit property the applicant will suffer irreparable loss as there can be no proper adjudication of the matter without impleading the applicant as party to the suit.
5. That under the circumstances it is in the interest of justice that the applicant is impleaded as defendant no. 2 in the suit for proper adjudication.
It is therefore, prayed that the applicant may be impleaded as defendant in the aforesaid matter in the interest of justice.
Applicant
Through
Counsel
Place:-………………………
Date:-……………………….
IN THE COURT OF…………………………………….
Suit No……..
In Re:
Shri/Smt……………….. Plaintiff
Versus
Shri/Smt……………….. Defendant
APPLICATION UNDER ORDER 1, RULE 10 READ WITH SECTION 151 C.P.C. ON BEHALF OF SHRI…………S/O, SHRI…………R/O………………………… FOR IMPLEADMENT AS DEFENDANT IN A PENDING SUIT FOR POSSESSION
AFFIDAVIT
I, …………… S/o Sh. S/o ………………, R/o ……………………., Sub Tehsil ……….., Distt. …………… do hereby solemnly affirm and declare as under:-
1. That my counsel under my instructions has drafted the accompanying application and the contents of the same have been read over and explained to me in Hindi which I have understood, the contents of aforesaid application are true and correct to my knowledge, on the bases of information received and believed to be correct and nothing has been concealed therein intentionally.
2. That the contents of accompanying application may kindly be read as part and parcel of this affidavit, as the same are not repeated here for sake of brevity.
Deponent.
Verification:-
Verified that the contents of my above affidavit are true and correct to the best of my knowledge and belief, nothing has been concealed therein.
Verified at ……….. on this day of _ _ May, ……………….
Deponent.