Allowed

Salim Khan v. Smt Sharifa Begum

Chhattisgarh HC5 Sept 2024WP227/765/2018

Case brief

AI extract

What is this about?

The High Court set aside the order of the trial court dismissing the petitioners' application for impleadment as defendants in a civil suit for declaration and injunction. The High Court held that the trial court should have allowed the impleadment to enable complete adjudication, as the petitioners claimed inheritance rights requiring determination during the trial.

What did the court decide?

The impugned order of the trial court was set aside, and the trial court was directed to allow the petitioners' application for impleadment as party defendants.

Salim Khan Vs Smt Sharifa Begum — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:34861

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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W.P(227) No.765 of 2018

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1 - Salim Khan S/o Late Hakimuddin Aged About 48 Years Ayappa Nagar, Near Shiva Public School, Bhilai, Durg., District : Durg, Chhattisgarh

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2 - Shamim Begum W/o Mohd. Arif Aged About 44 Years Rajatalab, Raipur., District : Raipur, Chhattisgarh

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3 - Nasim Begum W/o Kadir Hussain Ansari, Aged About 42 Years PO Kanharpuri, Rajnandgaon, District : Rajnandgaon, Chhattisgarh

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Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2024.09.09 11:17:24 +0530

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4 - Najma Begum W/o Abdul Wahid Khan Aged About 38 Years Teh. Gunderdehi, District Balod, District : Balod, Chhattisgarh

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5 - Salma Begum W/o Ashique Hussain, Aged About 35 Years Polsaipara, Durg, District : Durg, Chhattisgarh

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6 - Imran Khan S/o Late Hakimuddin, Aged About 33 Years Ashraf Nagar, Takia Para, Durg, District : Durg, Chhattisgarh ... Petitioners

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versus

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1 - Smt Sharifa Begum W/o Hamid Khan Aged About 40 Years Village - Alikhunta, P.O. Singhola, Teh. And District Rajnandgaon, District : Rajnandgaon, Chhattisgarh

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2 - Abdul Bakar Khan S/o Ijaajat Khan Aged About 75 Years Bhilai Camp - 1, Nehru Chowk, Teh. And District Durg, District : Durg, Chhattisgarh

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3 - Mehrunisa W/o Mohammad Khan Aged About 55 Years Village Kanharpuri, Teh. And District Rajnandgaon, District : Rajnandgaon, Chhattisgarh

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4 - State Of Chhattisgarh, Through Collector Rajnandgaon. (Plaintiff And Defendants) ... Respondents

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For Petitioners : Shri AK Samant Ray appears of For respective Respondents : Shri Rakesh Thakur, Advocate and Ms. Laxmeen Kashyap, PL.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board

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06.09.2024

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This Petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 09.07.2018 passed by the 2^nd Civil Judge, Class-2, Rajnandgaon in Civil Suit No.38A/2011 whereby, the the application under Order 1 Rule 10(2) CPC preferred by the proposed Defendants/Petitioners herein was dismissed.

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Brief facts of the case are that Respondents/Plaintiffs have instituted a Civil Suit for declaration and permanent inunction wherein,

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the Petitioners herein have made an averment that they also belong to the same ancestor namely Mansoor Khan and are also having interest on the subject property. The trial Court, before impleadment of the present Petitioners, has reached to the conclusion that the Petitioners herein have inherited their rights from the married daughter and as per the muslim law, they have excluded the inherent right on the said property and dismissed the said application. Hence this Petition.

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Learned Counsel for the Petitioners submits that the trial Court has reached to the conclusion that the Petitioners are the legal heirs of the daughter’s daughter, therefore, the question whether they have inherited right or not should be decided during trial and not at the stage of deciding the application under Order 1 Rule 10 CPC. He further submits that from the order impugned, it is reflected that the Petitioners are also having interest on the subject property, therefore, the trial Court ought to have allowed the said application. He, therefore, prays to allow the Petition while issuing a direction to the concerned trial Court for addition of the present Petitioners by arraying them as Defendants.

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On the contrary, learned Counsel for the Respondents oppose the aforesaid submission and submit that the principle of ‘dominus litis attracts against the wishes and consent of the Plaintiff and when no relief was sought against the Petitioners herein, the order passed by the Court below is just and proper and the same does not call for any intereference invoking supervisory jurisdiction.

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Heard learned Counsel for the parties, perused the order impugned as also the relevant documents with utmost care.

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The general rule with regard to impleadment of parties is that the Plaintiff in suit being dominus litis may choose a person against whom he wishes to litigate but cannot be compelled to sue a 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 provisions of Order 1 Rule 10(2) CPC which provides for impleadment of proper and necessary parties. The said sub-rule is extracted below:-

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“(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.”

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The said sub-rule makes it clear that the Court may, at any stage of the proceeding, either upon or even without any application and on such terms as may appear to the Court to be just, direct that any of the persons may be added as party and any person who ought to have joined as Plaintiff or Defendant but not added, be any person whose presence before the Court may be necessary in order to enable to Court to effectively and completely adjudicate upon and settle the question involved in the suit, therefore, the Court is given the discretion to add as a party any person who is found to be necessary or proper party.

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It is vivid that the Petitioners herein are claiming their right through their mother on the said property and whether they have inherited right or not has to be decided during trial and whether the Plaintiff who is the owner of the said property or not is with regard to the interest of the present Petitioners herein which requires to be adjudicated, therefore, this Court is of the view that the order impugned is not sustainable and the same is accordingly set aside.

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Resultantly, the Petition is allowed and the trial Court is permitted to allow the said application to implead the present Petitioners as the party Defendants and thereafter proceed in accordance with law.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Priya

Salim Khan v. Smt Sharifa Begum

Case brief

What is this about?

What did the court decide?

Salim Khan v. Smt Sharifa Begum

Case brief

What is this about?

What did the court decide?

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