Necessary and Proper party in a copyright suit. Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure of India (CPC) – Decision by Delhi High Court

IA No.1898/2017 u/O I R10(2) r/w Section 151 CPC moved by Defendant No.1 for deletion of name from array of parties in CS(OS) 433/2010

ATUL KUMAR SINGH     ..... Plaintiff  versus  NITISH KUMAR & OTHERS  ..... Defendants

The Plaintiff filed the present suit for infringement of copyright, declaration, and permanent injunction and for damages against Defendant(s) on the ground that the Plaintiff by compiling his original doctoral research work prepared a paper titled “Special Category Status: A case of Bihar”. It has been alleged by the Plaintiff that he was  shocked on reading the newspaper reports, wherein it was stated that said original work of the Plaintiff was published by the ADRI and the Centre for Economic Policy and Public Finance on 15.05.2009 and the said book was endorsed by Defendant No.1, Chief Minister of State of Bihar, who also claimed authoring the said book.

The Defendant No.1, filed an application for deletion of his name from the array of parties, stating that on the facts as stated in the plaint, no cause of action has been made out for instituting and maintaining the present suit against him. The Defendant No.1 also contended that from the perusal of the plaint and documents, it’s apparent that Defendant No.1 has not committed any act which constitutes an infringement of copyright and therefore, Defendant No. 1 is neither a necessary nor a proper party to the present suit, as no relief has been claimed against him and he has only been impleaded with mala fide intentions to cause embarrassment.

On the other hand, the Plaintiff contested the said application on the ground that it is a gross abuse and misuse of the process of law and it has been deliberately filed in order to delay the trial of the suit as the matter is at the stage of Plaintiff’s evidence and the Defendant No.1 has given no cogent reason for deleting his name from the array of the parties and the application has been moved on vague and baseless grounds. The Plaintiff also contended that from the pleadings it is apparent that the presence of Defendant No.1 is necessary for complete and final decision of the questions involved in the proceedings.

While deciding the said application, the Hon’ble Joint Registrar relied on the judgment of “Razia Begum Vs. Sahebzadi Anwar Begum and Others”, which summarized the law relating to Order I R 10 CPC as under:

“14. As a result of these considerations, we have arrived at the following conclusions:

(1)That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of the 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 contradistinction of its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;


(2)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;

(3)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;

(4)The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Section 42 and 43 of the Specific Relief Act;

(5)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;

(6)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; and

(7)The rule laid down in Section 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 Hon’ble Court also relied on another judgment titled “Kasturi v. Iyyamperumal and Others’ in Appeal (Civil) 2831 of 2005 passed by Hon’ble Supreme Court of India on 25th April 2005, which states as under:-

“14. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.”

After relying on the precedents, the Hon’ble Court observed that the heading page of the Book contains the name of Defendant No.1 in bold letters and the Defendant No. 1 in various newspaper clippings and interviews, allegedly given by him, has claimed himself to be the author of the said book and therefore, the Defendant No. 1 has direct interest in the subject matter of litigation and is both necessary as well as proper party to the suit, as in his absence no effective decree can be passed in the present suit.

While dismissing the said application, the Hon’ble Court also imposed the cost of Rs. 20,000/- on the Defendant No. 1 for sheer abuse of process of law.


Analyzed and Posted by
Vijay Pal Dalmia, Advocate
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