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2013 DIGILAW 762 (PAT)

Sakaldeo Rai v. Ram Pravesh Das

2013-07-04

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER This is an application under Article 227 of the Constitution of India seeking quashing of the order dated 04.02.2011 passed in Title Appeal No. 20 of 2004 by learned Additional District Judge, F.T.C.-II, Sitamarhi, whereby petitioners application for intervention dated 20.04.2010 to implead them as a party respondents in the appeal has been rejected. 2. The Title Appeal No. 20 of 2004 pending in the Court of Additional District Judge, F.T.C. II, Sitamarhi, preferred by Ram Pravesh Das (respondent No. 1) against judgment and decree arises out of judgment and decree passed in Title Suit No. 59 of 1994. After having lost in the suit, title appeal was filed by the plaintiffs in the year 2004. Six years after filing of the title appeal, application for intervention was filed on 22.04.2010. The intervention application is primarily based on the claim that in the title suit, an incorrect plea was taken that one Ram Newaj Rai had only two sons and the fact that he had three daughters, namely, Akali Devi, Mansariya Devi (petitioner No. 1) and Anandi Devi was concealed. They were not impleaded as party in Title Suit No. 59 of 1994, though they were necessary parties. 3. The contention is that through out during the pendency of the suit as well as the title appeal, the petitioners had absolutely no information as regards pendency of the appeal. The plea is that the moment they learnt about the title appeal, they filed an application for intervention under Order I Rule 10 of the Code of Civil Procedure. 4. It has been claimed that after Mahavir Rai, the brother of Ram Newaj Rai died issueless, his property devolved upon the heirs of Ram Newaj Rai including these petitioners and claim of Ram Pravesh Das in the plaint that he was adopted son of Mahavir Rai was falsely raised in the plaint and the suit was dismissed by a judgment against which the appeal is pending. 5. The petitioners claim that their presence in appeal is essential so as to protect their interest in view of the plea taken that Ram Newaj Rai had three daughters also. 5. The petitioners claim that their presence in appeal is essential so as to protect their interest in view of the plea taken that Ram Newaj Rai had three daughters also. Learned counsel for the petitioners have also brought on record a judgment passed in Title Suit No. 42 of 1962 dated 16.09.1966 by learned Munsif-I, Sitamarhi, so as to demonstrate that it was held in that case that said Ram Newaj Rai had three daughters also in addition to his two sons, namely, Sita Ram Rai and Ram Jatan Rai. He has submitted that at the time when application for intervention was being pressed before the Court below, this fact could not be brought to the notice of the Court as the same was not within the knowledge of the petitioners. 6. Learned counsel appearing on behalf of the respondent No. 2 has vehemently opposed this petition. Respondent No. 2 is the purchaser of the suit property from Sita Ram Rai, one of the sons of said Ram Newaj Rai. It has been submitted that if at this stage of appeal, the petitioner are allowed to intervene with the contentions as they have raised in their application, this will allow the retrial of the suit as their case is based on the fact that they were daughters of Ram Newaj Rai and could not be impleaded as party in Title Suit No. 59 of 1994. Reliance has been placed on behalf of the respondents on a Supreme Court judgment reported in A.I.R. 1997 (SC) 257. Paragraph-5 reads thus:- “5. As no suit was pending either in the trial Court or in the appellate Court when the High Court took up the revision of the first respondent for argument what was the need or occasion to pass an order for impleading a person as a new party in the suit? The revision should only have been dismissed as infructuous. Even otherwise, the Court should have been very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve a de novo trial, the Court should normally have disallowed the application. If the consequence of such addition would involve a de novo trial, the Court should normally have disallowed the application. Way back in 1931 the Privy Council did not allow the application for impleadment on the ground that such a course might throw open a de novo trial of the suit, even after noticing that the party sought to be impleaded was not merely a proper party but a necessary part in the suit. (Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229). Here, even the first respondent, has no case that he is a necessary party to the suit.” 7. She has submitted that consequence of such addition to party at appellate stage would open a de novo trial. 8. She has also placed reliance on a Privy Council judgment reported in A.I.R. 1931 Privy Council 229 (Naba Kumar Hazra and Ors. Vs. Radhashyam Mahish and Ors.) wherein the Privy Council was of the opinion that application for impleadment, even after noticing that the party sought to be impleaded was not merely a proper party but a necessary party in the suit, could not be allowed to be impleaded as such a course might throw open a de novo trial. 9. Replying to such submission, learned counsel appearing on behalf of the petitioners submits that even if the petitioners are impleaded as parties in the appeal, this will not lead to retrial/de novo trial of the suit. He submits that their presence is required in appeal so that their interest is protected. 10. Be that as it may, the fact remains that the suit was filed by Ram Pravesh Das, respondent No. 1 claiming himself to be adopted son and Chela of Mahavir Das. The suit was however, dismissed. 11. An appeal against dismissal of such suit is pending. It is not easy to believe that during all these years, the petitioners did not have any knowledge about the institution and pendency of the suit as well as the appeal. Further, the ground on which the petitioners claimed intervention go to the root of the matter as it questions the very genealogical table relied upon by the plaintiff of the suit, Respondent No. 1. With such plea, I am of the opinion that it will not be desirable at this stage of appeal to allow the petitioners to be impleaded in the appeal as party respondents. With such plea, I am of the opinion that it will not be desirable at this stage of appeal to allow the petitioners to be impleaded in the appeal as party respondents. As per the plea of the petitioners, there is specific finding in a separate suit wayback in the year 1966 that Ram Newaj Rai had three daughters also. 12. The petitioners, if aggrieved by any judgment or decree passed in any proceeding or in case any other cause of action arises, can certainly raise this claim in a separate proceeding. But, I am of the opinion, they cannot be allowed at this stage to be impleaded as party in the first appeal. 13. In the facts and circumstances of the case, I decline from interfering with impugned order and as I do not find any illegality in the order. 14. This application is dismissed.