Suresh Tiwari v. Smt. Shanta Tiwari & Ors.

Judgment

1. Smt. Shanta Tiwari, Wd/o Late Shri Ram Sanehi Tiwari, aged about 82 years, R/o Bemetara, Mohbhattha In front of j Byii Office, Tehsil - Road, Bemietara, Distt. Durg <CG) Plaintiff Harshwardhan Tiwari S/6 Late Shri Mahesh Tiwari, aQed aboyt 32 yearsi, R/o Bemetara, Tehsil - Bemetara, Distt.Durg(CG) ) Defendantl Smt. Sharda Ti^ari, Wd/o Late Shri Mahesh Tiwari, aged about 50 years, HouseWife i Sweta Tiwari, CVo Late Shri Mahes Tiwari,aged about22 years, Sapna Tiwari, D/o Late Shri Mahesh Tiv^ri,agedabout31years, (SI.No.3 to 5 R/o Durg, Padmanabhpur, Distt. Durg (CG) IVIIG-20, Dr. Naresh Tiwari, S/o Late Shri Ram Sanehi Tiwari, ag|ed 56 years, Doctor, Govt. Hospitai, Bemetara, Distt. Dui^ S/o Tiwari, Sh^^ Sanjeev Sheshnarayan Tiwari, aged about 35 years, R/o Rai^ur Road, Bemetara, Tehsil-Bemetara,Distt.Dyr9(CG) Late Defendants3to7

6. 7/ ^'^ n i^-U. :l'i'1: T.-l 2 CivilRevisionunderSection115oftheCQdeofCivilProcedure, 1908 Shri Sanjay S. Agrawai, counsei for the appiicani Shri Sanjay K. Agrawal with Shri Anand Kumar Jman, counseIfornon-applicantNo.1. Shri Amnd Kumar Dubey, counsel No.6and7. for non-appjicants < ORALORDER (Passed dn 25th July, 2007) Present : Heard. "ll.i (2) Itis an irony of fate that a mother, aged 82 years, is required to file a suit against her own sons for deciaration of title and permanent injunction of a house in which she resides. It is equally disturbing to note that aithough the five daughters and one son are supporting^^^ ^^^

case of the old mother, it is the appiicant/defendant No.2 vi/ho is hotly contesting against his very old mother, perhaps to repay matru-rin. (3) Aggrieved by the order dated 25.11.2006 passed by Smt. Ranu Divekar,AdditionalDistrictJud9e/BemetarainCiviiS deciding the preSiminary issue No.4 reiating to non-joinder of necessary partiesagainst him, theappjicant/ciefendant No.2 has preferred this civii revislon. (4) Admittediy, the genealogical tree showing the relationship between the parties is as under: 4- 'w^ ^Ml^ w t ^Ml^ /@ ...3 Ram Sanehi = Smt. Shanta Tiwari (Plaintiff) • ^ r ^ f • ^ f • " F ^if • . ^ r : i ' ^ f ^ Shesh Narayan \ Mahesh Tarni Pushpa Naresh Suresh Arti Kavita Anita (Def.6) (Def.2) = Mpnorama ^ ^ ShardaTJwari (Def.3) Sanjeev (Def.7) Daughters Two Harshwardhan (Def.1) T Sapna (Def.5) ^ Sweta (Def.4) (5) Non-applicant No.l/piaintiff Smt. Shanta Tiwari had instituted a Sujt clalming dedaration oftitie and permanent injunction, aiieging /nter aAa that the suit house and plot bearing KhasraNo.544/1and 544/2 admeasuring 0.081 hectareand 0.024 hectare respect'sveSy situated at viliage Bemetara described detalied in plaint schedule "A", purchased from the income of the Joint Hindu Famiiy property by a rsgistered deedofsaledated 21.11.1968 in the name of her sons namely Mahesh Tiwari and Suresh Tiwari.it was further pieaded that the suit house / plot feil to her share and her husband Ram Sanehi in a partition effected on 24.1.1972 and on 29.07.1974. It was pieaded that she is not bound by any terms and conditions, if stipuiated in the alteged deed regarding her Simited right. It was stated further that the defendants No. 6 & 7, nameiy Naresh Tiwari and S^njeev Tiwari had fjled an appiication for mutation before the Tehsildar, Bemetara in respect of the sult house. The Tahsiidar, Bemetara in the said Revenue Case No. 39-A/6/2003-04, dlrected for recordjng the name of defendant No.1 and defendants No.3 to 5 giving rise to the suit for declaration of title and In the alternative aiso praying fordeclaration that the pSaintiff is not bound by the terms and conditlons as stipulated in the alieged deed and for permanent injunction fpr restraining the defendants from misapproprlatlon of the suit house/plot. (6) The defendant No.2/applicant contested the suit by denying the aiieged deed of partitlon and submitting interaHa that his father late Shri Ram Sanehi had purchased the house^ and piots apart from the suit house and ptot in the name of all his sons and thus separated them oraiiy and that as per the sald arrangsment defendant Mahesh Tiwari l^^l and he started residlng In the suit house slnce the date of its purchase along wlth his mother and therefore they aione are in exciuslve possession over the suit house. it was further pieaded that if it was found that the suit house came jnto the share of his father, then in such clrcumstances also, It would be dlvided among all hls heirs upon his death and therefore piaintiff being a coparcener cannot daim her absolute right upon the suit house. !t was further pieaded that the five dgughters of the non-applicant No.l/pSaintiff Smt. Shanta Tiwari were necessary parties to the sult. (7) On the basls of the aforesaid pieadmgs, the triai Court framed issue No.4 as under: 'Whether daughters of deceased Ramsanehi are necessary parties?" (8) The iearned Additional Distrlct Judge ansv/ered the issue against the appiicanVdefendant on the ground that all the five daughters had filed affidavit in support ofthe pieadings oftheir mother in the suit. On K fff%$ IfSS t - t((s|i<»m»«»»Gg ^^ ( ^1^1%^ •tl%Wilti;il ^?^?:%/ this premise/afindingwasrecordedthatthefivedaughte appiicant No.1 /piaintiff Smt. Shanta Tiwari were not necessary parties inthesuit. (9) Shri Sanjay S. ^rawaJ, iearned c^ strenuously piaced reiiance on Kanakarathanammai vs. V^ Loaanatha Mudaliar andi another. AIR 1965 SC 271 and RaiabiM and others vs. S. Ameerali and another, AIR 1974 Karanatak 118 whiSe arguing thatsince the non-appiicant N6.1 /piaintiff had ciaimed the reilef of declaration of her being the exciusivle owner of the sult property, her daughters were necessary parties to the suit. it was argued that the question whether the non-applicant No.l/piaintiff was the soie owner pf the suit prope^ ;"§ste—^^:'..•'•.,-':;'/'.: .':;-': ^' ,1'' absence of necessary parties, i.e., daughte^^^^^ No.l/plaintiff. ; !ii^ Kumar Tiwari, learned counsei the non-applicant No.l/plaintiff (10) On the other hand, Shri Sanjay K. Agrawa! with Shri Anand argued in support of the impugned order and iwhite placing reliance on 'smySS^ ', !, ;, . Shiv ShakU CO-OD. Housina SocSetv. NaaQur vs. M/s Swaral Developers and Others. AiR 2003 SC 2434 submitted that there being no jurisdictionai error in the impugned order, apparent on the face it, revisional jurisdiction under Sert^^ PrQcedure (hence^ifea^|e Code'^ought not fo be invoked. !t was SB SIB' ^ !1 j! ^ further contended that neither the suit was for partition nor for deSivery of possession. Besjdes, all the five daughters of the rion-applicant NoJ/plaintiff had filed affidavit in sup^p^ applicantNo.1/piaintiff.Non-appiicantsNo.6and7/defendantshadaiso :^^ •i-.j ^" ?^%y;7@%^^®%^|;|?;i@%;^J^ supported the case 6f the non-appiicant No.l/piajntiff. It was^^^^^a the question of addition of parties is not a question of initial jurisdiction of the Court, but of a^^^^^^J^ exercised properiy by the tearned Addltionai District Judge and, therefore, no interference in exercise of revisional jurisdiction under Sectlon 115 ofthe Code was cailed for. Reliance was further piaced on Ramesh Hirachand Kundanmal vs. MuniclBal CorDoration of Greafer Bombay and ofhers. (1992) 2 SCC 524, Kasturi vs. Ivvamperuma! and others. (20051 6 SCC 733. Amst Kumar Shaw and_angffie^MS. Farida Khatoon and anoffte^ (2005) 11 SCC 403 and Prem La!a Nahats andl anothef' vs. Chandi Prasad Sikana. (2007)28cc 551. (11) I considered submissions with utmost clrcumspection. Order 1 Ruie 10 ofthe Code is as foilows: ~\. • . "0.1 R.10 : Sujt in name of wrong plaintiff. - (1) Where a suit has been instltuted In the name of the wrong person as piaintiffor where it is doubtful whether it has been jnstituted in the name of the right piaintiff, the Court may at any stage of tihe suit, if satisfied that the su'rt has been iristituted through a bona fkfe mistake, and that is necessary for determination of the real matter in dispute so to do; order any other person to be substituted or added as piaintilT upon such terms as the court thinks just. (25Courtmaystrikeoutora€Sdparties.-TheCourtmay at any stage oflhe proceedings, ejther upon or withou^^ 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]oined,whetherasplaintiffordefe^ out, and that the name of any person who ougbt to have been U.-j' '•—WM joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectuaiiy and compieteiy to adjudicatejupon and settle ali the questions invoived in the suit, be addedi. (3) No person shaii be added as a plaintiffsuing withouta friend of a piaintiff under any friend or as the next disabilitywithout his consent. I (4) Where defendant added, plaint to be amended. - Where a defendant is added, the plaintshalt, uniessthe Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the piaint shali be served cn the new defendant and, if the Court thinks fit, on the originai defendant; (5) Subject to the provisions of the Indian Umitation Act, 1877 (15 of 1877), section22, the proceedings asagainst any person added as defendant shall be deemed to have begun on!y on the service of the-summons." (12) In Ramesh Hlrachand Kundanntal vs. Municioal CorDoration •' • of Greater Bombav and others (supra), the Apex Court has drawn a '' :^ . . ! ! clear distinction between a necessary party and a proper party and has 1 heid as under:- "6. Sub-rule (2) of RuSe lOgives a wide discretion to the Court to meet every case of defect ofparties and is not : , _ ^/ ^'^' the inaction of the piaintiff to bring the necessary parties on record. The question of impleadment ofa party has to be decided on the touchstone of Order 1 Ryle 10 which l...'.;ii • •'-',.: , •' _-1.. ^ • '. provsdes that on!y a necessary or a proper party may be added. A necessary party is ones without whom no order can be made effectively. A proper party is one in whose absence an effective order cari be made but whose. presence is w^w a^iM^ necessary for a cqmpJete and finai decision |on the question The addition pf parties is invoived in the proceeding. generatly not a qyestion of initial jurisdiction of the Court but of a judicial discretion which has to be exercised^^^^^^^i thefacts and circumstances ofa particular case." "10. The power of the Court to add parties under Order 1 Rule 10 CTO, came up for consideration before this Court in, In that Razia Begum v. Anwar Begum, [1959 SCR 1111}. case it was pointed out that the courts in india have not treated the matter of addition of parties! as raising any jurisdiction of the Court and that it is question of the initial firmly estabiished as a result of judiciai decisions that in order that a person may be added as a partyto a suit.he should have a direct interest in the subject matter of the litigation whether it be the questions relating to movable or immovabSe property." "14. It cannot be said that the main object of the ryle is to prevent multiplidty of actions though it may incidenteily that appears to; be a desirable have that effect. < But consequence of the rule rather than its mam objective. The pferson to be joined must be one whose presence is necessary as a party. What makes a person a riecessary party is not merely that he has relevant evjdence to give on some of the questions involved; that wouldionly make him a necessary witness. It ss not mereSythat he has^^^^^ the correct solution of some question involved and has thought of relevant argyments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the resuit of theaction and the question to be settled, therefore, myst be a question in the action which cannot be effectually and completeSy settied unless he is a party. The iine has been drawn on a wider construction of the ruie between the direct interest or the legal interest and commerciai interest. it is, therefore, i> i ! 1 | necessary that the person must be directiy or legaiiy interested in the action in the answer, i.e., he can say that the Sitigation may lead to a resuJt which will affect him iegaSiythat is by curtaliing his iegal rights. ......... ......." (13) in Amit Kumsr Shaw snd another vs. Farida Khatoon and another (supra), the Apex Court held as under: "9. The objectof Order 1 Rule 10 is to discourage contests on technicai pieas, and to save honest and fiona ffde claimants from being non-suited. The power to strike out or add parties canbe exercised bythe court at any stage of the proceedings. Under this ruie, a person may be added as a partyto a suit in the following two cases: (1) when he ought to haye been joined as piaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot becpmpjeteiydecided." "10. The powerof a court to add a party toa proceeding cannot depend soiely on the question whether he has interest in the suitproperty, The question is whether the right of a person may be affected sf he is not added as a party. Such right, however, will necessarily indude an enforceable iegal right." (14) !n Kasturi vs. ivvamperumaJ and offiers (supra), two tests were laid down by the Apex Court for determining the question as to who is a necessary party. The Apex Court held as under: , "7. !n our view, a bare reading of this provision, nameiy, ^r B8 •V-t ^;^ 10 second part of Order 1 Ruie 10 sub-rule (2) CR3 would deariy show that the necessary parties in a sust for specific for sale are the parties to the performance of a contract contract or if they are dead, their lega! representatives as aiso a person who had purchased the contracted property from the In equity as wei! as in iaw, the contract constitutes vendor. rights and also regulates the liabilitles of the partles. A purchaser is a necessary party as he wpuld be affected if he had purchased with or without notice of the contract, but a person who daims adversely to the daim of a vendor is, it is now however, not a necessary party. From the above, clear that two tests are to be satisfied fordeterminlng the question who is a nQcessaryparty. Tests are—(1) there must be a right to some relief against such pariy in respect of the (2) no effective controversies rnvoived in the proceedings; decree can be passed in the absence of such party." (15) In Prem Laia Mahata and another vs. Chandl PrasacS Sikaria (supra),th9 Apex Court while considering the scope of Order 1 observed as under: ^•-r \ "15. it ss weli understood that procedure is the handmajd of justlce and riot Its mistress. The scheme of Order 1 and Order 2 dearly Shows that the prescriptions therein are in the realm of procedure and not in the rea!m of substantive iaw or in the context of these provisions wlth rights. particular reference to the ruies in Order 1 and Order 2 of the Code, it is clear that an objection of misjolnder of plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the triai and final .................... disposai of the sult. ......................." (16) Section 115 of the Code provides as under L. fSS^_ .. • • •... ^f' MS 11 "115. Revision. - (1) The High Court may cal! for the record ofanycasewhich hasbeen decided by any Court subordinate to such High Court and in which no appeal thereto, and if such subordinate Court appears- (a) (b) (c) to have exercised a jurisdiction not vested in it by law, or i jurisdiction sovested, or faiied exercise a to have acted in the exercise of its jurisdjctjon illegally or with material irrsguiarity, 1^:: 1 '/r' l;'v ' l ^ the High Court may make such order in the case as it thinksfjt Provided that the High Court shali not, under this section, vary pr reverse any order made, or any order deciding an issue, in the course of a suit orother proceeding.exceptwhere the order, if it had been made in favour of the party appiying for revision, wouid have finally disposed ofthe suit or other proceedings. (2) section, vary or The High Cqurt shall not, under this reverse any decree or order against which an appea! lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay pf suit or other proceeding before ther Court ewept where such suit or other proceeding is stayed by theHighCourt. - Expianotion. !n expression "any case which has been decided" includes any order made, or any order deciding an section, issue, in the course of a suit or other proceeding." prrn— !.! 12 (17) !t is thus clear that the High Cqurt while exercising revisional jurisdiction under Section 115 of tie Code would notinterfere unless there is a jurisdictional error of one of the three types mentioned in clauses (a), (b) and (c)of sub-section (1) ofSection 115 of the Code. In the present case, is not in dispute that the non-applicant No.l/piaintiff is residlng in the suit accommodation. Since a cioud has been cast upon her titie by the mutatlon of the names o? defendants No.2 to 5, non-applicant No.l/pialntiff had fiied suit for a dedaratlon simpiicitor that she was the owner of the suit property. Neither partitlon nor possession of the sult property was ciaimed and except the five daughters of the non-appiicant No.l/piaintiff, nameiy, Tarni, Pushpa, Arti, Kavlta and Anita, the other sons and grand sons and grand daughters were parties to the suit. No relief was claimed against her daughters by the non-appiication No.l/piamtiff. Not oniy this Tarni, Pushpa, Arti, Kavita and Anita had fumished affidavits In support ofthe suit flied by their mother. Evon the non-applicants/defendants No.6 and .fc 7, i.e., the son and grand son of the non-applicant No.l/piaintlfTwere supporting the case of the plaintiff. Under these circumstances, the questions involved in the sult couid be effectlveiy decided without the five daughters being joined as a party for the simpie reason that they were not oniy supporting the case of the piaintiff, but haci aiso llied affidavits in support thereof. As heid in Ramesh Hlrachand Kundanmsi vs. MuniclDsi Corpof'a^on of Greater Bombav and others (supra), the addltion of party in generai Is not a question of initiai Jurisdiction of the Court but of a judicla! discretlon which has .to be exercised in vlew o? the clrcumstances of a particuiar case. !n the facts and clrcumstances of the case mentioned above, an'effective decree Kli &. :n:':l 1 J ^^uu 13 could be passed in the suit even though the five daughters were not joined as partles. As held in Prem La!a Nahata and snother vs. Chand! Prasad Slkaria (supra), the scheme of Order 1 and the prescriptlons therein are in the reaim ofprocedure and notinthereaim of substantlal !aw,or rights. In the facts and circumstances, it cannot be sald that the learned Additionai District Judge has committed an error of jurisdiction under any ofthe clauses (a),(b) and (c) of sub-section (1) of Section 115 of the Code. The refusa! to add the five daughters as parties to the suit is based upon a sound exercise ofjudicia! discretion. Therefore, no interference is calSed for in exercise of the revisionai jurisdlctlon under Section 115 of the Code. (18) The case Q^ Kanakarathanammai vs. V.S. Lofianatha Mudaliar and another (supra) clted by iearned counsei appiicant/defendant No.2 Is ciearly distlngulshabie as In that case it was heid that the sult filed by the appeliant takes the character of a suit for partltion and In such a suit the appeilant aione wouid not be entitied to ciaim any reiief against the respondents and it was absoiuteiy essentiai that ai! the three heirs, i.e., the sons were before the Court. The presentsuit is not a suit forpartltion or for possession and ail the flve daughters, who were not impieaded as parties, had given affidavits^ before the Court fuily supporting ths claim of the mother. Therefore, the non-appllcant No.l/pJaintitf's claim cannot be rejectedon the ground that she has failed to impiead her five daughters in the suit. (19) \n Ralablbi and others vs. S. Ameerall and another (supra) aiso, reited on by learned counsei for the appiicant/defendant No.2, the suit was for possession of the property repudiating 'the claim of the ^.-r' i" .4. ••. -i:. RiijIllliJi'BIBSIIJSII^I ''{ 'i. 14 other co-sharers. PIacing reSiance on Kanakarathanammal vs. V.S. Loaanatha Mudaiiar and another (supra), it was held that in the absence of the other co-sharers, the suit would n^^ This cas6 is also cleariy distinguishable for the above mentioned reasons and does not come to the aid of the appiicant/defendant No.2. f (20) in this view ot' the matter, ! am of the consideredopinion that neither there is any jurisdictional error apparent; on the face of the impugned order nor has the applicant/defQndant No.2 been able to demonstrate that the judiciaS discretion exercised by the iearned Additionai District Judge in rejscting the prayer for addition of daughters as necessary parties to tiie suit was not a sound exercise of judicialdiscretion. (21) In the result, the revlsionfails andis accordingiydismisseci. ^ 1.1 •y'":T 7'N" ••/ , ^ ^ Gopal Sd/- Dilip Raosaheb Deshmukh Judge