High Court
Legal Reasoning
1 19.WP-10535-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 10535 OF 2024SARJERAO PANDU GADHE AND ANOTHERVERSUSMOHAN PANDU GADHE DIED THROUGH LRS JIJABAI MOHAN GADEKARALIAS GHADE AND OTHERS…..Advocate for the Petitioner : Mr.Survase B.R. And Rohit B SurvaseAdvocate for Respondent Nos. 1 to 4 : Mr. Ishwar K. Wagh h/f. Mr. K.M.More... CORAM : SHAILESH P. BRAHME, J. DATE : 25th FEBRUARY 2025PER COURT :1.Heard both sides finally at the admission stage with theirconsent.2.The petitioners are original defendant Nos. 1 and 3 and arechallenging order dated 02.04.2024 below Exhibit-11 passed byDistrict Judge, Newasa in R.C.A No.24 of 2022 allowing applicationExhibit-11 filed by the respondent no.1 under Order 1 rule 10 andOrder 6 rule 17 of C.P.C. Respondent no.1 is the original-plaintiff whohad filed R.C.S No. 780 of 2011 for partition and separatepossession. Petitioners were original defendant nos. 1 and 3. The suitwas dismissed on 30.06.2022 by the trial court which gave rise to theappeal before the lower appellate court. 2 19.WP-10535-2024.doc 3.During pendency of the appeal, the respondent no. 1 submittedapplication Exhibit-11 under Order 1 rule 10 and Order 6 rule 17 ofC.P.C to implead Tarabai Laxman Shelke and Sindhubai DattuIndapure as the parties to the appeal. They are real sisters of thepetitioners and the respondents. Application was contested by therespondents. It was allowed by the impugned order.4.Learned counsel Mr.Survase for the petitioners submits thatlower appellate court exceeded in its jurisdiction. For that purposemy attention is adverted to Section 96, Section 105 and Order 41rule 31 of C.P.C. He would submit that already similar type ofapplication was filed at Exhibit-66 in the trial court and it wasrejected on 01.01.2018. On second occasion, application Exhibit-78was filed in the trial court by the respondent which was rejected on30.10.2011. Those orders were not challenged by the respondent.Hence, the application should not have been entertained and it wasliable to be rejected. There was no due diligence on the part ofrespondent. Time barred claim is sought to be introduced at theappellate stages which was lost sight of in the impugned order. It isfurther submitted that appeal was preferred on vague grounds.5.Learned counsel for the petitioners further submits that therewas registered partition deed dated 04.01.2002 and despite thatrespondent filed suit for partition. He is not entitled to any share inview of section 6 sub-section (5) of Hindu Succession Act, 1956. It isfurther contended that there is possibility of remanding the matter, if 3 19.WP-10535-2024.doc the sisters are impleaded at this stage which is not permissible. Hewould rely on the judgment of Supreme Court in the matter ofKanakarathanammal vs. Loganatha Mudaliar and another reported inAIR 1965 SCC 27 and judgment of this Court in the matters ofGanpat Bhagoji Kshirsagar and others vs. Anjana Krushna Jamdadeand another in Writ petition No.10831 of 2023 and Usha SahebraoSurwase vs. Dnyanoba Narayan Lomate and Others in Second AppealNo. 741 of 2018.6.Per contra, learned counsel Mr.Wagh holding for Mr. Moreappearing for the respondents supports impugned order. He wouldsubmit that those sisters are necessary parties. The appellate courthas power to allow applications filed under Order 1 rule 10 or Order6 rule 17 of C.P.C. Being co-parceners they are entitled to shares insuit properties. Even if the interlocutory orders passed below Exhibit-66 and Exhibit-78 were not challenged, those would not beimpediment.7.I have considered rival submissions of the parties.8.There is no dispute that Sindhubai and Tarabai are real sistersof petitioners and the respondents. In written statement plea wastaken by the petitioners for non-joinder of necessary parties andaffirmative finding was recorded. The suit was dismissed on meritsvide judgment dated 30.06.2022. In the trial court similar type ofapplications were moved at Exhibit-66 and Exhibit-78 which were 4 19.WP-10535-2024.doc rejected by distinct orders passed on 01.01.2018 and 30.10.2011respectively.9.The submissions of the petitioners that there was partitioneffected vide registered document and suit for partition is notmaintainable would be on merits of the appeal. It is upto theappellate court after conclusion of the hearing of the appeal to decidewhether respondent is entitled to decree or not. The purport ofsection 6 sub-section (5) of Hindu Succession Act,1956 would bedealt with during the course of hearing by the lower appellate court.Similar is the case with the objection regarding limitation. If thesisters are directed to be impleaded then it would be open to thepetitioners to raise grounds of limitation. Apparently, their right toreceive shares cannot be said to be barred by time but same shall besubject to decision of the appellate court.10.Sisters of the parties are co-parceners. If suit is filed forpartition then they will have share in the properties. Appeal iscontinuation of the suit. Non-joinder of necessary parties is in thesense a technical plea albeit it goes to the root of the matter. Theorders passed below Exhibit-66 and Exhibit-78 can be examined bythe lower appellate court under Section 105 of C.P.C.11.One more aspect of the matter is that sisters are claiming to beheirs of one of the brothers who was defendant no.2 Vitthal PanduGadhe. He died issueless. Sisters are Class-II heirs. Therefore, 5 19.WP-10535-2024.doc independently they have interest in the proceedings as well as insubject matter which cannot be denied on any technical ground.12.I find that the lower appellate court is right in exercisingjurisdiction. It has adopted a pragmatic view. There is no perversityor patent illegality in the impugned order.13.The reliance is placed by the learned counsel for the petitionerson the judgment of Kanakarathanammal (supra),Usha SahebraoSurwase (supra) and Ganpat Bhagoji Kshirsagar and others(supra).In case of Kanakarathanammal (supra) and Usha SahebraoSurwase (supra), there was full-fledged trial in the trial court as wellas appellate court. Facts of those case are distinguishable. Thosecannot be made applicable when appeal in the present matter ispending. In respect of judgment of this Court in the matter of GanpatBhagoji Kshirsagar and others (supra), application for amendmentwas moved by the plaintiff after commencement of trial and it wasallowed merely because plaintiff was illiterate lady. In the context ofthose facts, it was recorded that plaintiff was aware of thetransactions and she was held to be not diligent in prosecuting thesuit. In the present case the issue of non-joinder of necessary partiesto the partition suit is under consideration. The ratio of thosejudgment is not applicable to the present case.14.I do not find any merit in the writ petition.a)The writ petition is dismissed.
Decision
6 19.WP-10535-2024.doc b)There shall be no order as to costs. [ SHAILESH P. BRAHME, J.]vsj..