The High Court dismissed a civil revision petition challenging an appellate court order that impleaded necessary parties (legal heirs of a deceased co-sharer) in a partition suit under CPC Order 1 Rule 10 during pendency of appeal.
Revision petition dismissed; impugned order allowing impleadment of legal heirs upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R. No. 506 of 2008
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 506 of 2008 Date of Decision: 16.7.2009
Kartar Ram --- Petitioner
Versus
Gurmej Ram and others --- Respondents
CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL
PRESENT: Mr. Satinder Khanna, Advocate for the petitioner.
None for the respondent.
AJAY KUMAR MITTAL, J.
In this petition filed under Article 227 of the Constitution of India, the prayer is for setting aside the order dated 20.12.2007 whereby an application under Order 1 Rule 10 of the Code of Civil Procedure (in short “the Code”) for impleading Bhagat Ram as party to the suit was allowed by the Additional District Judge (Adhoc) Fast Track Court, Jalandhar.
A few facts are necessary to be mentioned to appreciate the controversy raised in this revision petition.
Gurmej Ram and others, i.e. plaintiff-respondent Nos. 1 to 4, filed a suit seeking partition of the suit property. They, however, did not implead Bhagat Ram son of Mangal Ram as defendant to the
C.R. No. 506 of 2008
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said suit who had 132 shares in the suit property and undisputedly, was a necessary party for proper adjudication of the controversy raised in the suit. It was, inter alia, pleaded, in the suit that originally, Pritoo, father of the plaintiffs, was the owner in joint possession of the property with the defendants. Pritoo died leaving behind his sons, i.e. the plaintiffs; defendant No.4, Soorti Ram; defendant No.5 Lachhman, and a daughter, defendant No.6, Dassoo. The suit was contested. The contesting defendants raised preliminary objections, including one that the suit was bad for mis-joinder and non-joinder of necessary parties. The trial court, upon appreciation of evidence produced on record held that the suit was bad for non-joinder and mis-joinder of parties and accordingly in view of the aforesaid finding dismissed the suit vide judgment and decree dated 6.8.2005.
The plaintiffs preferred appeal challenging the said decree. However, during the pendency of the appeal, the plaintiffs moved an application before the appellate court for impleading the legal heirs of Bhagat Ram, one of the co-sharers in the suit property. It was pleaded in the application that Bhagat Ram had been shown as co-sharer in Khasra No. 997 in the copy of jamabandi for the year 1994-95 but inadvertently, he could not be impleaded earlier as a party to the suit. Since Bhagat Ram had died during the pendency of the first appeal, the plaintiffs sought permission of the appellate court for impleading his legal heirs in the suit. It was further pleaded that no prejudice would be caused to the defendants in case the prayer was granted and otherwise also, it was necessary to implead them as party for proper adjudication of the controversy raised in the suit.
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Though the application for impleadment of legal heirs of Bhagat Ram was opposed tooth and nail by the defendants, but the first appellate court having regard to the facts and circumstances of the case and after hearing learned counsel for the parties accepted the prayer of the plaintiffs, and while allowing the application under Order 1 Rule 10 of the Code and setting aside the judgment and decree of the trial court remanded the matter back to the trial court for fresh decision of the suit, vide order dated 20.12.2007. It is this order which has been impugned in the present revision petition.
I have heard learned counsel for the petitioner and have gone through the record.
A suit for partition of the property by metes and bounds stands on a different footing as the parties retain their character of cosharers till the property is partitioned. Every co-sharer in the property has common interest and a right to seek partition of the property to enjoy separate share therein as an unwilling co-sharer cannot be compelled to enjoy the property along with other co-sharers. In a suit for partition, the interests of the parties are similar as they are only to be given separate shares according to their entitlement and each of the co-sharers stands in the position of a plaintiff and of defendants with reference to another. If a suit is dismissed for non-joinder of necessary parties, it rather affects the rights of the parties and premium cannot be given to a co-sharer who is in possession of the property in excess of his/her share therein. Further a suit for partition
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remains pending till a final decree is passed and a party could be impleaded even during the stage of final decree proceedings.
The Supreme Court in Savitri Devi v. District Judge, Grakhpur and others, A.I.R. 1999 S.C. 976, while considering the scope and ambit of Order 1 Rule 10 of the Code, laid down as under:
“Order 1, Rule 10 C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code.”
There is no denying the fact that the suit has been filed for partition and was primarily dismissed for non-joinder and misjoinder of necessary parties. It was also not disputed between the parties that Bhagat Ram was one of the co-sharers in the property in dispute as indicated in the copy of jamabandi, Exhibit P-4. It was specifically urged before the appellate court on behalf of the plaintiffs that impleadment of legal heirs of Bhagat Ram was quite necessary for proper adjudication of the controversy involved in the suit and that he could not be impleaded earlier in the suit due to inadvertence. Further, the defendants had themselves admitted that Bhagat Ram was a necessary party to the suit. In a suit for partition, all the parties should be present before the court to enable it to effectively and completely adjudicate upon and settle all the questions involved in
C.R. No. 506 of 2008
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the suit and also that the court in the facts and circumstances of the
case has power to add a necessary party at any stage.
There is, thus, no illegality or impropriety or any ground
for interference with the impugned order.
In view of the above, there is no merit in the revision
petition and the same is consequently dismissed.
July 16, 2009 RKMALIK
(AJAY KUMAR MITTAL) JUDGE
3 issues framed by the court
Whether the High Court can interfere under Article 227 with the appellate court's order allowing impleadment of a necessary party in a partition suit under Order 1 Rule 10 of CPC.
Whether impleadment of a co-sharer is permissible at the appellate stage when the suit was earlier dismissed for non-joinder.
Whether the appellate court's order accepting impleadment despite opposition by defendants was arbitrary or without legal basis.
Colour shows how this judgement treated each authority
Savitri Devi v. District Judge, Grakhpur and othersReferred¶30
Savitri Devi v. District Judge, Grakhpur and others, A.I.R. 1999 S.C. 976 · Who else cites this
2 provisions across 2 enactments
Kartar Ram
Gurmej Ram
AJAY KUMAR MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
