Jhalki Mandalian &Ors v. Bisheshwar Mandal &Ors
Case Details
IN THE HIGH COURT OF JHARKHAND,RANCHI. W.P(C)No. 4433 of 2006 Jhalki Mandalian &Ors . .............................................. Petitioners Versus Bisheshwar Mandal &Ors . . ...............................Respondents For the Petitioners : Mr. K.P.Deo Advocate For the Respondents :- Mr A.K.Chowdhury Advocate CORAM :- HON’BLE MR. JUSTICE P.P.BHATT . . Order No. 12 Dated 7th March,2013 The present petitioners by way of filing this writ petition under Article 227 of the Constitution of India have prayed for quashing the order dated 18.5.2006 passed in Title Partition Suit No. 144 of 2003 by the learned Sub-Judge, 3rd at Deoghar whereby the petition filed by the petitioners under order 1 Rule 10 of the Code of Civil Procedure has been rejected.
Legal Reasoning
Heard the learned counsel appearing for the petitioners as well as the respondent. Perused the impugned order and other materials placed on record. It appears that original plaintiffs filed Title Partition suit No. 79 of 2002/144 of 2003 before the court below against 42 defendants for partition of the property and during pendency of the said suit the present petitioners moved an application for impleading party respondents in the said suit. The petitioners' claim is based on the documents which are annexed with the petition vide annexures 2,5 and 6. It appears that the learned court below while dealing with the said application reached to the conclusion that the present petitioners are not necessary and proper party to the proceeding as the petitioners have applied for the land under the Bhoodan Yagya Scheme and they have been alloted a piece of land under the said scheme. The another reason assigned by the court below is that in the written statement filed by the defendants no. 34 to 42 issue regarding non- joinder and mis-joinder of necessary parties was not raised and third reason assigned by the court below is that the name of the petitioners is not mentioned in the voters list and therefore, the learned court below found that they were not necessary and proper party to the proceeding. The learned counsel appearing for the petitioners in support of his submission by referring paragraph-5 of the written statement filed by the defendants 10,15-18 and 20-29 pointed out that the defendants have raised specific plea before the court below that Genealogical table set forth by the plaintiffs are not correct and it is incomplete genealogy and it is the suppression of facts. The learned counsel appearing for the petitioners by referring internal page-7 of the written statement filed by these defendants pointed out about specific averments made in the written statement regarding false genealogical table and thereby suppression of the name of the present petitioners. The learned counsel appearing for the petitioners has also pointed out from the written statement filed by the above defendants which has been annexed as annexure-2, that from genealogical table given by the defendants it appears that the petitioners are the necessary and proper party to the suit. The learned counsel appearing for the respondents while justifying the order passed by the learned court below submitted that the learned court below after careful consideration of the facts and circumstances involved in the case passed reasoned order that the petitioners are not necessary and/or proper parties to the suit and in support of his submission he has referred to and relied upon the decision in the case of Mumbai International Airport Private Ltd Vs Regency Convention Centre and Hotels Private Limited and ors. reported in (2010)7SCC 417 and by referring paragraph 24 of the said judgment the learned counsel appearing for the respondents submitted that if a plaintiff makes an application for impleading as party defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Order 1 Rules 9 & 10(2) of C.P.C provides that if the claim against such a person is barred by limitation, it may refuse to add him as a party and it may even dismiss the suit for non- joinder of a necessary party. As against that, the learned counsel appearing for the petitioners submitted that said judgment will have no barring to the facts and circumstances of the present case as suit in question was in relation to specific performance whereas the present case is in relation to partition of a property where the present petitioners are claiming impleadment as necessary party as they are claiming right, title and interest over the suit property being a part of the family. I have perused the judgment cited by the learned counsel appearing for the respondents. This judgment will not help to the Respondents' case as the facts of the present case is entirely different from the facts of the case cited by the Respondents. On the contrary, the view expressed in the said judgment is helpful to the petitioners' case because in para 15, the Hon’ble supreme court defines the word necessary party and proper party. Para 15 reads as follows:- “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” This court is of the view that the case on hand is a partition suit and all the persons who are claiming share in the ancestral property being a legal heirs are required to be joined as a party because in absence such party the court cannot completely, effectively and adequately adjudicate upon all matters in disputes in the suit. Considering the aforesaid rival submissions and on perusal of the impugned order it appears that the present petitioners are necessary and proper party to the suit and therefore, they are required to be impleaded as party respondent in the said partition suit filed by the plaintiffs. On perusal of the written statement filed by the above defendants it clearly indicates that the specific plea was raised by the defendants regarding suppressing of fact and providing incomplete genealogical table. In the light of this fact the learned court below ought to have considered the written statement filed by the defendants while passing the impugned order. The learned court below while passing the impugned order observed regarding written statement filed by the defendant nos. 34- 42 but the learned court below has failed to appreciate and consider the averments made in the written statement filed by the defendants 10,15-18 and 20-29 which clearly indicates that present petitioner are necessary and proper party to the proceedings. More over, the provision contained in order 1 rule 10 of CPC is required to be considered in its proper perspective so as to adjudicate upon all the matters in the dispute completely,effectively and adequately . Keeping in mind the spirit of the said provisions the present petitioners are required to be impleaded as party respondent in the suit and hence present petition is allowed and the impugned order dated 18.5.2006 passed in Title Partition suit No. 144 of 2003 is quashed. The court below shall take further steps for adjudication in accordance with law. This writ petition is allowed accordingly. (P.P. Bhatt, J) SD