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1997 DIGILAW 618 (PAT)

Shreemant Kumar Choudhary v. Yashwant Kumar Choudhary

1997-08-27

S.N.JHA

body1997
Judgment S.N. Jha, J. This civil revision by the plaintiff is directed against order dated 19th June, 1996 passed by the 1st subordinate Judge, Sitamarhi, in Title suit No 126 of 1987, adding opposite party no. 1 Yashwant Kumar Choudhary as intervenor-defendant on application filed by him in that regard under Order 1 Rule 10 of the Code of Civil Procedure. 2. The plaintiff filed the suit for dissolution of partnership and division of assets and liabilities of M/s Kumar Talkies, Dalsingsarai, and for closure of business. Shortly stated his case is that on 31st August, 1972 he entered into partnership with the defendants to run cinema business in the name of M/s Kumar Talkies and a deed of partnership was executed creating partnership at will. Defendant no.1 (opp. party no.2 herein) in collusion with and at the instance of the other defendants deprived the plaintiff of his share of profit and access to the account. He served notice to the defendants for dissolution of the partnership firm and ultimately filed the suit it appears that the suit was referred to for arbitration. The Arbitrator filed his award in Court on 25th August, 1991. The defendants have filed objection to the award, which is pending. On 20th February, 1993 the application for intervention was filed. 3. The submission of the counsel for the petitioner is that in a suit for dissolution of partnership only the partners are the necessary parties. Intervention by a third party is wholly unwarranted. Order 1 Rule 10 of the Code contemplates addition of a person who is either proper or necessary party for the adjudication of the dispute involved in the suit. Opposite party no.1 being stranger to the partnership firm, his presence is not necessary for adjudication of any dispute touching upon the partnership. 4. From the impugned order it appears that the parties to the suit are all family members. Defendant no.1, Ramashray Prasad Chaudhary is the father of the plaintiff and grand father of defendant nos.2 to 4, 6 and 7, and father-in-law of defendant no.5. (The intervenor is none else then his son i.e. brother of the plaintiff). He is also karta of the family. Defendant no.1, Ramashray Prasad Chaudhary is the father of the plaintiff and grand father of defendant nos.2 to 4, 6 and 7, and father-in-law of defendant no.5. (The intervenor is none else then his son i.e. brother of the plaintiff). He is also karta of the family. The suit property was partitioned amongst the family members in partition suit no.190 of 1953 on the basis of compromise, after the matter had been referred to the Arbitrator and his Award was made rule of the court. As per the award, the intervenor-opposite party no.1 got 1/5th share in the suit property. Similarly, the plaintiff, defendant no.1, father of defendant nos. 4 and 7 (Raman Kumar Choudhary) and husband of defendant no.5 (Shilwant Kumar Choudhary) also got 1/5th share each. Defendant nos.2, 3 and 6 are the sons of the intervenor. In the year 1971 another partition suit was tiled which also ended in compromise. It was decided that some of the properties of the joint family will run as partnership firm. M/s Kumar Talkies is one of the items of the properties, which was to run as partnership firm. In these facts the court has held that the intervenor has interest in the suit property and allowed intervention. In this back ground it is to be considered whether the addition of the intervenor-opposite party no.1 is correct or not. 5. The relevant provisions of the Code of Civil Procedure, namely, sub-rule (2) of Order 1 Rule 10 may be noticed at this stage as hereunder :- "The court may at any stage of proceeding, 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 joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court factually and completely to adjudicate upon and settle all the questions involved in the suit, be added." The rule, thus, provides that the court may at any stage or the proceeding either strike out the name of any party improperly joined as plaintiff or defendant or add the name of any person who ought to have been joined as plaintiff or defendant in the suit. It further provides that if the presence of any person before the Court is necessary, to enable the Court to adjudicate upon between the parties, the Court has jurisdiction to add such a person. Thus, there are two types of persons, who way be added as party to the suit (a) person who is necessary party i.e. in the absence of whom relief claimed in the suit cannot be granted, that is to say, for the grant of relief claimed in the suit he ought to have been joined, and, (b) persons who are proper parties i.e. whose presence may be necessary with a view to fully adjudicate upon the matter involved in the suit. 6. In Razia Begum Vs. Sahabzadi Anwar Begum (AIR 1958 Supreme Court, 886), the Supreme Court while considering the question of addition of parties laid down various principles, two of which are : "(1) That the question of addition of parties under R. 10 of O.1 of the Civil P.C. is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case..... (2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of litiation." I am tempted to quote a passage from Halsbury's Law of England, vide para 226, Vol. 37 (4th Edn.), which reads as under : “Intervention by persons who are not parties. - The general rule of practice is that the plaintiff is entitled to choose the person or persons as defendant against whom he wishes to pursue his claim for the reliefs or remedies he seeks, and that he cannot be compelled to proceed against other persons whom he has no desire to sue. Nevertheless, the Court has power to add a person who is not a party to the action as originally constituted as a defendant against the will of the plaintiff, either on the application of the defendant or of the non-party. Nevertheless, the Court has power to add a person who is not a party to the action as originally constituted as a defendant against the will of the plaintiff, either on the application of the defendant or of the non-party. An application by any person to be added as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or the question or issue to be determined as between him and any party to the cause or matter. A person having no legal but only a commercial interest in the outcome of the litigation between the plaintiff and the original defendant cannot be added as a party either for the convenience of the Court or otherwise. On the other hand, a person may be added as a defendant, either on his own application or on the application of the defendant, where his proprietory or pecuniary rights are or may be directly affected by the proceeding either legally or financially by any order which may be made in action (sic), or where the intervenor may be rendered liable to satisfy any judgment either directly or indirectly." I do not wish to multiply decisions on the point, which are available in plenty. 7. From the above statements of law it is clear that a person can be added as a defendant if he is able to show that he has a direct interest in the property in dispute or the question/issue to be determined in the suit. In the present case it would appear that partnership in question is not like ordinary partnership between strangers, the partners are admittedly family members. The property in question, namely, M/s Kumar Talkies is a joint family property allotted to five co-sharers including the intervenor, and agreed to be run as a partnership firm. In the partnership, in place of the Intervenor his three sons are partners. In these circumstances, it cannot be said that the intervenor has no direct interest in the property. It would not be out of place to mention here that from the revision petition it appears that a number of cases, to wit, Partition Suit no. 89 of 1989, Title Suit no.126 of 1987 (Present suit), Title Suit no.139 of 1987, Title Suit No. 79 of 1989, Misc. It would not be out of place to mention here that from the revision petition it appears that a number of cases, to wit, Partition Suit no. 89 of 1989, Title Suit no.126 of 1987 (Present suit), Title Suit no.139 of 1987, Title Suit No. 79 of 1989, Misc. Case No. 53 of 1989, Misc. Case no. 25 of 1989, Misc. Case no. 40 of 1988, Misc. case no. 41 of 1988, Misc. Case No. 6 of 1989 and Misc. Case No. 49 of 1983, are pending between the parties and the intervenor is a party in some of those cases. 8. In the abovementioned facts, I am satisfied that exercise of discretion by the court below in favour of the intervenor was not erroneous. As the Supreme Court has observed (supra) the question of addition of parties is generally not one of initial jurisdiction of the Court but a judicial discretion which has to be exercised in view of all facts and circumstances of a particular case. In these premises I am not inclined to interfere with the order. 9. In the result, this civil revision is dismissed.