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2010 DIGILAW 531 (JHR)

Md. Nasir Ahmad v. Md. Zahir

2010-04-23

D.N.PATEL

body2010
Order The present writ petition has been preferred against an order passed by the 1st Additional District Judge, Chaibasa, dated 15th December, 2008 in Title (Partition) Appeal No.7 of 2006 (Annexure-4 to the memo of the petition) whereby, an application, preferred by the present petitioner, (original plaintiff-appellant) under Order VI Rule 17 to be read with Section 151 of the Code of Civil Procedure, for amending in the cause title of the plaint, has been dismissed and therefore, the present petition has been preferred. 2. Learned counsel for the petitioner submitted that in pursuance of the notice, issued by this Court dated 15th April, 2010, the petitioner had taken personal service upon the respondent and today, an affidavit has been filed to the effect that the respondent has refused to accept the notice of this Court. 3. Learned counsel for the petitioner submitted that the petitioner is original plaintiff, who has instituted Title (Partition) Suit No. 6 of 2003 before the learned Munsif, Chaibasa, wherein, the respondent (original defendant) had filed a written statement-cum-counter claim to the effect that the petitioner (original plaintiff) as well as one Md. Sultan @ Kaltu are the encroachers and they have to be evicted and hence, the decree, passed by the trial court dated 17th February, 2006 to the effect that the original plaintiff as well as Md. Sultan @ Kaltu, were ordered to be evicted from the suit property and it was directed to handover peaceful and vacate the possession of the suit property to the defendant. 4. It is further submitted by the learned counsel for the petitioner (original plaintiff-appellant) that the aforesaid judgment and decree, passed by the trial court is challenged by an appeal by way of Title Appeal No. 7 of 2006 before the Court of 1st Additional District Judge, Chaibasa wherein, an application was given under Order VI Rule 17 to be read with Section 151 of the Code of Civil Procedure for joining Md. Sultan @ Kaltu, as party defendant no. 2 in the Title Suit, mainly for the reason that if the appeal is preferred by the petitioner, is allowed by the appellate Court, then the order cannot be executed against Md. Sultan @ Kaltu, as party defendant no. 2 in the Title Suit, mainly for the reason that if the appeal is preferred by the petitioner, is allowed by the appellate Court, then the order cannot be executed against Md. Sultan @ Kaltu, without there being a party in the Title Suit and looking to the written statement-cum-counter claim and the decree, passed by the trial court, Md Sultan @ Kaltu is a necessary party. This aspect of the matter has not been properly appreciated by the learned 1st Additional District Judge, Chaibasa and hence, the order, passed by the lower appellate court dated. 15th December, 2008, as well as the order dated 24th March, 2009, whereby, a review application, which was preferred by the petitioner (original plaintiff-appellant) and an order passed on review application, deserves to be quashed and set aside. 5. Nobody appears on behalf of the respondent and looking to the affidavit, filed by the petitioner that the respondent has refused to accept the notice of this Court, it is deemed to have been served. 6. Having heard learned counsel for •the petitioner (original plaintiff-appellant) and looking to the facts and circumstances of the case, I hereby, quash and set aside the orders passed by the learned 1st Additional District Judge, Chaibasa, dated 15th December, 2008 as well as the order dated 24th March, 2009 in Title (Partition) Appeal No. 7 of 2006, on the following facts and reasons:- (i) It appears that the present petitioner, who is original plaintiff, has filed Title (Partition) Suit NO.6 of 2003, before the learned Court of Munsif at Chaibasa. (ii) It appears from the facts of the case that the respondent, who is original defendant, has filed written statement-counter claim to the effect that the petitioner as well as one Md. Sultan @ Kaltu are required to be evicted and the partition suit filed by the original plaintiff, deserves to be dismissed. (iii) It appears that thereafter, the trial court passed the judgment and decree dated 17th February, 2006 (Annexure-1 to the memo of the petition) whereby, it was directed that the petitioner (original plaintiff) as well as Md. Sultan @ Kaltu have to be evicted from the suit property and both were directed to handover peaceful and vacate possession of the suit property to the defendant. Sultan @ Kaltu have to be evicted from the suit property and both were directed to handover peaceful and vacate possession of the suit property to the defendant. (iv) It appears that thereafter, the present petitioner, who is an original plaintiff-appellant had preferred an application being Title (Partition) Appeal No.7 of 2006 and in that Title (Partition) Appeal, an application was preferred by the present petitioner under Order VI Rule 17 to be read with 151 of the Code of Civil Procedure for amending the plaint to the effect that Md. Sultan @ Kaltu, who is referred in the decree and in the written statement-cum-counter claim,- is required to be joined as party defendant mainly for the reason that if the Title (Partition) Appeal No. 7 of 2006 is allowed in favour of the present petitioner, then the decree can. not be executed against Md. Sultan @ Kaltu, who is never a party in the Title Suit and therefore, this application ought to have been allowed by the 1st Additional District Judge, Chaibasa. (v) It further appears that the lower appellate court has lost sight of the fact that Md. Sultan @ Kaltu is referred in the judgment and decree, passed by the trial court to the effect that he should also be evicted and he also himself handover peaceful and vacate the possession of the suit property to the defendant. This direction was given to Md. Sultan @ Kaltu, without joining him as party defendant and therefore, Md. Sultan @ Kaltu is necessary party, so that if the Title (Partition) Appeal is allowed, which is preferred by the original plaintiff, there will be no difficulty in execution of the order, passed by the lower appellate court especially, when it is an admitted fact that Md. Sultan @ Kaltu is also residing in the suit property, he is also to be evicted, he being a party to the suit. 7. As a cumulative effect of the aforesaid facts• and reasons, I hereby, allow this writ petition, and amendment application, preferred by the petitioner (original plaintiff-appellant) for amending the cause title of the Title (Partition) Suit No. 6 of 2003 is hereby, allowed and Md. Sultan @ Kaltu is directed to be joined as party defendant. Likewise, he will also be joined as party respondent no. 2 in Title (Partition) Appeal No. 7 of 2006, also. Sultan @ Kaltu is directed to be joined as party defendant. Likewise, he will also be joined as party respondent no. 2 in Title (Partition) Appeal No. 7 of 2006, also. Necessary notices will be issued by the appellate court, upon the newly joined party and after hearing the parties to the Title Appeal, it will be decided, in accordance with law, as expeditiously as possible and practicable.