Dismissed

Smt. Rukmani W/O Late Shri Kalaram @ Radhysyam v. Pyareylal Saini S/O Shri Biharilal Saini

Rajasthan HC13 Sept 2022CW/21118/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the dismissal of an application under Order 1 Rule 9 CPC seeking dismissal of a suit for non-joinder of a necessary party. The Court upheld the Trial Court's exercise of suo motu power under Order 1 Rule 10(2) CPC to add the missing party.](null)

What did the court decide?

Writ petition stands dismissed.

Smt. Rukmani W/O Late Shri Kalaram @ Radhysyam Vs… — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No.21118/2019

¶3

Smt. Rukmani W/o Late Shri Kalaram @ Radhysyam, R/o Tuladas Road, Kalyan Ka Kuwa, Alwar Rajasthan (Deceased)

¶4

Mahendra Saini S/o Late Shri Kalaram @ Radhysyam, R/o Tuladas Road, Kalyan Ka Kuwa, Alwar Rajasthan

¶5

Kalluram Saini S/o Shri Lalluram Saini, R/o 168, Scheme No.2, Lajpat Nagar, Alwar Dist. Alwar (Death Took Place)

¶6

3/1. Taruna Saini D/o Late Kaluram Saini W/o Ashveen Kumar,

¶7

R/o A-216, G-1, Gate No.2, Pani Pech, Jaipur.

¶8

3/2. Rajesh Saini S/o Late Kaluram Saini, R/o 168, Scheme

¶9

No.2 Lajpat Ngar, Alwar.

¶10

3/3. Amita Sani D/o Late Kaluram Saini W/o Surendra Saini, R/o D-504, Palm Ashdeep Neemrana

¶11

3/4. Dhopa Devi W/o Kaluram, R/o 168, Scheme No. 2 Alwar.

¶12

Yogesh S/o Late Shri Bhorelal, R/o Mohalla Jubli Bas Alwar Dist. Alwar.

¶13

Ghansyam S/o Late Shri Bhorelal, R/o Shiv Colony, 60 Foot Road, Daudpur City And Alwar.

¶14

----Petitioners-Defendants

¶15

Versus

¶16

Pyareylal Saini S/o Shri Biharilal Saini, R/o Outside Machadi Chowk, Ramwala Kuwa, Tehsil Rajgarh, District Alwar.

¶17

----Plaintiff/Non – Petitioner

¶18

1. Smt. Bhoti W/o Shri Bhorelal, Mohalla Jubli Bas, City & District Alwar.

¶19

Rajkumar S/o Late Shri Bhorelal, R/o Mohalla Jubli Bas, City & District Alwar.

¶20

----Performa – Non-Petitioners/Defendants

(2 of 5)

[CW-21118/2019]

For Petitioner(s)

: Mr.Mohit Gupta, Adv.

¶25

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

¶26

Order

¶27

13/09/2022

¶28

This writ petition has been filed by the petitionersdefendants challenging the order dated 01.11.2019, whereby application filed by the petitioners under Order 1 Rule 9 CPC for dismissal of the suit of the plaintiff on the ground of non-joinder of necessary party, has been dismissed.

¶29

Learned counsel for the petitioners submitted that the petitioners had moved an application under Order 1 Rule 9 CPC before the Court below and it was pointed out that on account of non-joinder of necessary party, the suit filed by the respondentplaintiff was not to be entertained and the same was required to be dismissed.

¶30

Learned counsel for the petitioners submitted that daughter of Kalaram i.e. Sunita was not impleaded as party and on account of her status being a necessary party, the suit itself could not have proceeded.

¶31

Learned counsel submitted that the Court below though has rejected the application filed by the petitioners, however, the Court has exercised suo moto power to add the said Sunita as defendant in the suit.

¶32

Learned counsel submitted that suo moto power could not have been exercised by the Court below and as such, the order is contrary to provisions contained in Order 1 Rule 9 CPC as non-joinder of necessary party, has to result into dismissal of the suit.

¶33

(3 of 5)

¶34

[CW-21118/2019]

¶35

Learned counsel further submitted that if, at all, the Court was to allow impleadment of necessary party, then in such an eventuality, proper issue should have been framed and thereafter, the Court could have either rejected or allowed the prayer for impleadment of Sunita, as party defendant in the suit.

¶36

Learned counsel for the petitioners places reliance on a judgment passed by the Apex Court in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandaran & Ors. reported in [2017 DNJ (SC) 145] and judgment passed by this Court in the case of Bhojamal Sindhi Lohana Vs. Devaram Choudhary reported in [2017(4) RLW 3037] .

¶37

Learned counsel on the strength of said judgment submitted that if necessary parties are absent in a suit, then such suit suffers from the defect of non-joinder of necessary parties and the Trial Court is required to dismiss such suit.

¶38

I have heard learned counsel for the petitioners and perused the material available on record.

¶39

This Court finds that in the impugned order dated 01.11.2019, the Court has recorded a finding that initially an agreement to sell dated 14.10.2005 was executed between the Kalaram S/o Lalluram and Pyare Lal S/o Biharilal. The Court below has further recorded that in continuation of earlier agreement on account of death of Kala Ram, his wife Rukmani also entered into agreement with Pyarelal dated 17.02.2006. The Court below has also recorded a finding that wife of Kalaram – Rukmani and his son Mahendra Saini, were already defendants in the suit.

¶40

The Court below has further opined that daughter of Kalaram – Sunita, would be a proper party, however, on account of

¶41

(4 of 5)

¶42

[CW-21118/2019]

¶43

her non impleadment, the suit was not to be dismissed and accordingly, application filed by the petitioners was dismissed.

¶44

This Court further finds that the Court below has

¶45

exercised the power under sub-rule (2) of Rule 10 of Order 1 CPC and come to the conclusion that even without application of any of the party, the Court has power to add or delete any party for enabling the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

¶46

The submission of learned counsel for the petitioners that once application filed by the petitioners was dismissed, the Court could not have exercised its power under Order 1 Rule 10 (2) CPC, suffice it to say by this Court that the power given to the Civil Court under sub-rule (2) of Rule 10 of Order 1 CPC, is discretion of the Civil Court to add or delete any party, either as a plaintiff or defendant, for adjudicating the dispute.

¶47

The submission of learned counsel for the petitioners that once application of the petitioners was filed, as Sunita was left out, who was a necessary party, then the proviso to Rule 9 of Order 1 CPC prohibits the absence or non-joinder of necessary party, and the suit should have been dismissed or in the alternative, the issue in that regard should have been framed, this Court finds that if the Court below has exercised its power under sub-rule (2) of Rule 10 of Order 1 CPC, the question of framing an issue to this effect would not arise. There is no dispute on the legal proposition that non-joinder of necessary party can result into dismissal of suit, however, if the Court has exercised its power considering the dispute between the parties and absence of such necessary party, then the proviso contained in Order 1 Rule 9 CPC,

¶48

(5 of 5)

¶49

[CW-21118/2019]

¶50

will not come in way of exercising the power by the Court under sub-rule (2) of Rule 10 of Order 1 CPC.

¶51

This Court finds that no error has been committed by the Court below while passing the impugned order dated 01.11.2019 and as such, no interference is required by this Court. Accordingly, the present writ petition stands dismissed.

¶52

(ASHOK KUMAR GAUR), J

¶53

Himanshu Soni/11

Smt. Rukmani W/O Late Shri Kalaram @ Radhysyam v. Pyareylal Saini S/O Shri Biharilal Saini

Case brief

What is this about?

What did the court decide?

Smt. Rukmani W/O Late Shri Kalaram @ Radhysyam v. Pyareylal Saini S/O Shri Biharilal Saini

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mukesh Kumar S/O Shri Lakshman Vs State of Rajasthan

Preeti Bala Dhanetwal Vs Riico

Bihari and Ors. Vs Gyarsi Devi and Ors.

Smt.Usha D. Rana Vs Raj State Coop.Tribunal,Jaipur

Priyanka Yadav Vs State Education Departmentors

Karuna Bansal W/O Shri Avinish Bansal Vs Dalpat Singh Naruka S/O Shri Rajendra Singh