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2004 DIGILAW 266 (JHR)

VISHNU SAHU v. GOBIND SAHU

2004-03-11

P.K.BALASUBRAMANYAN

body2004
Judgment : P. K. BALASUBRAMANYAN, J. ( 1 ) HEARD counsel for the petitioner and counsel for respondents 1 and 2. In the nature of the order I propose to make, i do not think it necessary to issue notices to respondents 4 to 7, the heirs of the brother of respondents 1 and 2. ( 2 ) RESPONDENT No. 1 herein, Gobind Sahu filed a suit for partition of the ancestral properties and for a declaration that certain properties standing in his name are not available for partition. Gopi Sahu, respondent No. 2 herein resisted that suit. The trial Court passed a preliminary decree for partition upholding the claim of Gobind Sahu, the plaintiff. It held that Gobind Sahu was entitled to 1 /3rd share in the ancestral properties and it further held that the properties standing in his name are not available for partition. Being aggrieved by this decree, Gopi Sahu filed a Title Appeal. T. A. No. 58 of 2003. It may be noted that in the suit; the children of Gobind Sahu and the children of Gopi Sahu were not parties. The widow and children of their third brother, Harakh Nath Sahu, came into the picture only on the death of Harkh Nath Sahu, pending suit. ( 3 ) IN the appeal, a petition for compromise under Order 23, Rule 3 of the Code of Civil Procedure was filed submitting that due to the intervention of well wishers, the dispute between the parties has been settled and they have agreed to divide all the properties including those found to be the separate properties of Gobind Sahu by the trial Court, each brother taking 1/3 rd of the properties. When this compromise petition was filed, the petitioner herein, a son of Gobind Sahu, the plaintiff in the suit, came forward with an application seeking to get himself impleaded by invoking Order 1, Rule 10 of the Code of Civil Procedure. He raised an objection that the compromise should not be accepted, since his father was not in a sound state of health, he was not capable of protecting his own interests and that the compromise was prejudicial to his branch family, of which the petitioner was a member. He raised an objection that the compromise should not be accepted, since his father was not in a sound state of health, he was not capable of protecting his own interests and that the compromise was prejudicial to his branch family, of which the petitioner was a member. On behalf of Gopi Sahu, the appellant in the appeal, this application was opposed on the ground that the applicant was a third party, was not entitled to come on record in the appeal and that there was nothing illegal or improper in the compromise entered into and the attempt to disrupt the family again, in spite of the compromise should not be encouraged. The appellate Court noticed the decision of the Bombay High Court to the effect that in a suit for partition of a hindu undivided family, it will be enough if the heads of the branches are impleaded and junior members are not necessary parties. It further proceeded to say that it was not necessary to implead the petitioner, the son of Gobind Sahu as a party to the appeal. It dismissed the application. This is sought to be challenged before me in this revision petition. ( 4 ) IF one were to go by the principles enunciated by the Bombay High Court in Bhikulal v. Kishan Lal, AIR 1959 Bombay 260, that where the partition is claimed as between the branches of a family, the heads of all the branches alone need be made parties, it is clear that Govind Sahu was on the array of parties as representing his branch - to that extent, the action becomes a representative action attracting the provisions of Order 23, Rule 3b of the Code of Civil Procedure. The court in that case would be constrained to follow the procedure laid down in that Rule. But, here what has happened is that one of members of the branch of Gobind Sahu, the first respondent in the appeal, has come forward with an application objecting to the compromise on the ground that his father was not in a position to understand the consequences of his act. It appears to me that in the circumstances and even going by the principles accepted by the appellate Court, the petitioner before that Court, decides to accept or reject the compromise. It appears to me that in the circumstances and even going by the principles accepted by the appellate Court, the petitioner before that Court, decides to accept or reject the compromise. This will be in consonance with the objective sought to be achieved by Order 23, Rule 3b as well. ( 5 ) NORMALLY, a question of impleading is not one of initial jurisdiction, but is one of exercise of judicial discretion and consequently a revisional Court would not interfere as a general Rule. But in a case like the present one, where a question of the procedure to be adopted by the Court is involved and in the light of the representative capacity assumed by Gobind Sahu, one of the parties to the compromise, it appears to me that the Court below has acted with material irregularity in exercise of its jurisdiction in refusing to implead the petitioner before it. It may also be noticed that in the light of Order 23, Rule 3a of the Code of Civil Procedure, it may not be open to the petitioner to challenge the compromise decree as being not lawful, by way of another suit. ( 6 ) TAKING note of the circumstances as a whole, I am satisfied that this is a fit case where interference of this court is needed. I, therefore, allow this revision by setting aside the order of the appellate Court, and allowing the application filed by the revision petitioner, Vishnu Sahu, for being brought on record as a party to Title Appeal No. 58 of 2003. the appellate Court will hear the petitioner also while dealing with the question, whether the compromise entered into is liable to be accepted by the Court or not, and give the revision petitioner an opportunity to establish his challenge to that compromise. The revision petition is allowed in the above manner. Petition allowed. --- *** --- .