The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 1049 of 2023 --------- 1. Mithilesh Prasad, aged about 53 years, son of Late Basudeo Sahu, resident of village Burmu, P.O. & P.S. Burmu, District Ranchi, Jharkhand. 2. Smt. Kunti Devi, aged about 50 years, wife of Mithilesh Prasad, resident of village Burmu, P.O. & P.S. Burmu, District Ranchi, Jharkhand. 3. Jitendra Prasad, aged about 51 years, son of Vijaymal Prasad, resident of Lalitgram, Kathitand, P.O. & P.S. Ratu, District Ranchi, Jharkhand. 4. Brajnandan Prasad, aged about 55 years, son of Shri Gopi Prasad, resident of village Basadih, P.O. & P.S. Mandu, District Ramgarh, Jharkhand. 5. Birendra Prasad, aged about 57 years, son of Gobardhan Prasad, resident of village Sirka, P.O. & P.S. Mandu, District Ramgarh, Jharkhand. 6. Rajesh Kumar @ Rajesh Kumar Gupta, aged about 60 years, son of Late Basudeo Sahu, resident of village Burmu, P.O. & P.S. Burmu, District Ranchi, Jharkhand. 7. Ajit Prasad Sahu, aged about 53 years, son of Shri Krishna Sahu, resident of village Makka, P.O. Makka, P.S. Burmu, District Ranchi, Jharkhand. … … Petitioners Versus 1. Jagarnath Giri, son of Late Balkishun Giri, resident of village Nauj Putri Tola, P.O. Genjo Thakurgaon P.S. Burmu, District Ranchi, Jharkhand. 2. Dinesh Giri, son of Late Laxman Giri, resident of village Nauj Putri Tola, P.O. Genjo Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. 3. Mahesh Giri, son of Late Laxman Giri, resident of village Nauj Putri Tola, P.O. Genjo Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. 4. Suresh Giri, son of Late Laxman Giri, resident of village Nauj Putri Tola, P.O. Genjo Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. 5. Ganesh Giri, son of Late Laxman Giri, resident of village Nauj Putri Tola, P.O. Genjo Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. 6. Pawan Giri, son of Late Laxman Giri, all residents of village Nauj Putri Tola, P.O. Genjo Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. … … Respondents 7. Sumitra Devi, wife of Ram Das Giri. 8. Birendra Giri, son of Ram Das Giri. 9. Vikash Giri, son of Suresh Giri. 1 C.M.P. No.1049 of 2023 10. Akash Giri, son of Suresh Giri. 11. Meera Devi, wife of Late Suresh Giri. 12. Shila Devi, wife of Late Loli Giri. 13. Asit Giri, son of Late Loli Giri. 14. Ranjit Giri, son of Late Loli Giri. 15. Amit Giri, son of Late Loli Giri. 16. Chura Devi, wife of Late Shatrughan Giri. 17. Arun Giri, son of Late Strughan Giri. all residents of village Nawaj Putri Tola, P.O. Ginjo, Thakurgaon, P.S. Burmu, District Ranchi, Jharkhand. CORAM: HON’BLE THE ACTING CHIEF JUSTICE … …. Proforma Respondents --------- For the Petitioners ----------
Legal Reasoning
: Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate ----------- 03/Dated: 16th August, 2024 Prayer: 1. The instant petition has been filed under Article 227 of the Constitution of India against the order dated 26.05.2023 passed in Civil Misc. Appeal No. 50 of 2021 arising out of O.S. (Partition) No. 1005 of 2019, whereby and whereunder, the petition dated 22.02.2021 filed under Order I Rule 10(2) read with Section 151 of CPC, seeking therein the prayer for impleadment of the applicants, the petitioners herein, as party to the proceeding, has been rejected as not maintainable. Facts: 2. The brief facts of the case, required to be referred herein, is as follows: It is the case of the petitioners that the respondent nos.1-6 and the proforma respondent nos. 7-17 had knowledge that the petitioners and subsequent purchasers were and are in possession of the land in question being R.S. Plot No. 598, khata no. 32 of village Nauj, Thana Burmu, revenue thana no. 82, district-Ranchi but neither of the respondents have disclosed the same before the learned court nor have impleaded the petitioners are party to the proceeding in O.S. Suit (Partition) No. 1005 of 2019 which has been filed by the respondent 2 C.M.P. No.1049 of 2023 nos.1-6 against the proforma respondent nos. 7-17 for partition of the aforesaid land. The learned civil court issued notice to the respondent nos. 7-17 but they did not appear before the concerned court, thereafter, the learned court proceeded ex-parte vide order dated 26.03.2019. Thereafter, the said partition suit was decreed ex-parte in faovur of the respondent nos. 1-6 vide judgment dated 07.12.2019 and preliminary decree signed on 18.12.2019. Considering the same, the petitioners filed Civil Miscellaneous Application No. 50 of 2021 for impleadment as party to the proceeding under Order I Rule 10(2) read with Section 151 of CPC in the Original Suit No. 1005 of 2019 in connection with Civil Misc. Application No.332 of 2020 but the same has been rejected vide order dated 26.05.2023 by the learned court as being non-maintainable. 3. It appears from the factual aspect that a petition has been filed at the stage when the preliminary decree has been passed in Original Suit (Partition) No. 1005 of 2019. The petitioners have filed a petition under Order I Rule 10(2) read with Section 151 of CPC for their impleadment along with the prayer for quashing and setting aside the preliminary decree. 4. Objection has been filed on behalf of the opposite parties/decree holders raising the issue of maintainability primarily on the ground that the concerned court is having no jurisdiction to quash and set aside the preliminary decree. The learned trial court has passed the impugned order by rejecting the petition dated 22.02.2021 against which the present petition has been filed. Argument on behalf of the Petitioners: 5. Mr. Ankit Vishal, learned counsel for the petitioners has submitted that the learned trial court has not appreciated the fact holding the petition to be not maintainable. 6. It has been contended that no reason has been assigned with respect to the relief sought for in the petition filed under Order I Rule 10(2) of 3 C.M.P. No.1049 of 2023 CPC for impleadment of the parties to the proceeding and as such, on this ground alone, the impugned order dated 26.05.2023 is not sustainable in the eyes of law, as such, the same is fit to be quashed. Analysis: 7. This Court has heard the learned counsel for the petitioner and gone across the finding recorded by the learned trial court in the impugned order. 8. It is the admitted fact as would be evident from the petition filed under Order I Rule 10(2) of CPC that the said petition was filed after the preliminary decree having been passed by the learned trial court. The case was pending for appointment for Survey Knowing Pleader Commissioner which is the stage prior to passing of the final decree. 9. The said petition was seriously objected by the decree holders raising the issue of maintainability since the prayer so made in the petition is wholly misconceived and the same cannot be allowed to be raised at the stage where the Survey Knowing Pleader Commissioner is to be appointed which is the stage prior to preparation of the final decree. 10. The purport of Order I Rule 10(2) of CPC is very much specific that in which circumstances the party is to be impleaded and in which circumstances, the party is not to be impleaded. 11. The said issue has been dealt with by the Hon'ble Apex Court in the judgment rendered in Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors. (2010) 7 SCC 417, wherein at paragraph-13, the Hon'ble Apex Court has laid down the proposition which is a general rule that it is the wish of the plaintiff to implead a party against whom the plaintiff wants to contest but in the said paragraph itself, the observation has been made that the said general rule will be subject to exception as has been carved out by considering the implication of Order I Rule 10(2) of CPC. For ready reference, paragraph-13 is being referred as under: “13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a 4 C.M.P. No.1049 of 2023 person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: “10. (2) Court may strike 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.”” 12. It further needs to refer herein that the Hon'ble Apex Court has also interpreted the meaning of necessary party as under paragraph-15 wherein it has been observed that 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. For ready reference, paragraph-15 is being referred as under: “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.” Further, paragraph-22 is also required to be referred herein, wherein, the scope and ambit of Order I Rule 10(2) of CPC has been 5 C.M.P. No.1049 of 2023 taken into consideration. It has been observed that the said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. For ready reference, paragraph-22 is being referred as under: “22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. 13. The suit herein is of partition and at the stage where the preliminary decree has been passed, a petition has been filed for two fold prayers, the first prayer is for impleadment and the second prayer is for quashing and setting aside the preliminary decree passed by the Original Court. 14. The learned trial court has considered the objection so made by the decree holders by taking two grounds first that the petition is misconceived, as such, is not maintainable and second that the same has been filed at the stage where the Survey Knowing Pleader Commissioner was already appointed. 6 C.M.P. No.1049 of 2023 15. So far as the ground of non-maintainability is concerned, it cannot be disputed that once the original court has passed the preliminary decree, no such prayer can be made by a stranger to the suit by filing a petition under Order I Rule 10(2) of CPC for quashing and setting aside the same. 16. The requirement which is to be shown by the applicant invoking the jurisdiction conferred under Order I Rule 10(2) of CPC is to establish his case by bringing under the fold of the party said to be necessary party and in whose absence thereof, any effective adjudication of the lis is not possible. 17. So far as the first prayer is concerned by which the prayer has been made for impleadment of the parties. The learned trial court has considered the same and the case since was at the stage of the report of the Survey Knowing Pleader Commissioner since the Pleader Commissioner has also been appointed which is prior to the stage of passing of the final decree, which led the learned trial court to reject the said prayer also. 18. So far as the second prayer is concerned of quashing and setting aside the preliminary decree in no stretch of imagination is permissible on any ground whatsoever even if the decree has been passed ex-parte since in case of decree having been passed ex-parte, then the remedy is else, i.e., by way of approaching the appellate jurisdiction and not before the same court that too filing a petition under Order I Rule 10(2) of CPC. 19. The learned trial court has also come with the observation about the status of the petitioners who are considered to be strangers to the suit and as such, it has been held that the petitioner had option to challenge the preliminary decree passed by the court but the same has never been challenged. 20. This Court, therefore, is of the view that if the learned trial court by taking into consideration both the prayers having been raised by the petitioner in the petition dated 22.02.2021, has rejected the same, the 7 C.M.P. No.1049 of 2023 same according to the considered view of this Court cannot be said to suffer from error. 21. This Court is exercising the power conferred under Article 227 of the Constitution of India and it is the settled position of law regarding the jurisdiction which is to be exercised by the High Court under Article 227 of the Constitution of India as has been settled by the Hon'ble Apex Court in Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limitless power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 22. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 23. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no 8 C.M.P. No.1049 of 2023 reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 24. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 25. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 26. Although while exercising the power conferred under Article 227 of the Constitution of India, least interference is to be given of the order passed by the competent court of civil jurisdiction and as such, the interference can only be made if there is manifest error available on the face of the order. Conclusion: 27. This Court, applying the said principle and based upon the aforesaid discussion, is of the view that the impugned order needs no interference. 28. Accordingly, the instant civil miscellaneous petition is, hereby, dismissed.
Decision
29. Pending interlocutory application(s), if any, also stands disposed of. Saurabh/- A.F.R. (Sujit Narayan Prasad, A.C.J.) 9 C.M.P. No.1049 of 2023