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2014 DIGILAW 1433 (MP)

Anand Sood v. Kanak Devi

2014-11-07

SUJOY PAUL

body2014
ORDER 1. The parties are on loggerheads on the question of addition of party before the Court below. The respondent No.1/ plaintiff filed a suit for partition, permanent injunction and possession. Earlier, the said suit was dismissed by the Court below against which FA No.6/1993 was filed before this Court. By judgment dated 24.2.1999 the appeal was allowed in part and the decree was modified to some extent. The matter was remitted back before the trial Court. The order of first appeal got a stamp of approval from the Supreme Court in SLP No.5696/2007 (Annexure P/8). During the pendency of said suit, the petitioner/applicant preferred an application under Order 1 rule 10 CPC (Annexure P/3). In para 3 of said application he described the family tree and stated that his mother Shyamlata was daughter of Durga Prasad and therefore, he is entitled to ¼ share of the property. It is stated that property in question is HUF property and therefore, the applicant is a necessary party in the suit. Other side filed reply to the said application (Annexure P/4) and prayed for its rejection. Court below by the impugned order dated 07.10.2014 rejected the said application which is called in question in this petition filed under Article 227 of the Constitution. 2. Shri Santosh Agrawal, Advocate for the petitioner, submits that Court below has erred in rejecting the said application. The applicant is a necessary party and delay cannot be a ground for rejecting the said application. Other reasons assigned by the Court below were also critisized by Shri Agrawal. He relied on 2011(6) SC 462 (Prema v. Nanje Gowda and Ors.), 2005(2) MPHT 44 (Sukhram v. Sarju Bai and others.), 2012 (1) JLJ 285 ( Rajesh v. Keshar Singh and others) and 1994(1) VIBHA 162 (Ranchhod and others v. Ramchandra and another). 3. Per Contra, Shri V.K. Agrawal, Sr. Advocate supported the order passed by the Court below. By taking this Court to Annexure P/4, it is argued that applicant cannot get any right because the right of daughter is created in the year 2005 by way of amendment in Hindu Succession Act, 1956. Whereas, admittely, Durga Prasad died prior to the said amendment and suit was also filed prior to the said amendment. He supported the order passed by the Court below. Whereas, admittely, Durga Prasad died prior to the said amendment and suit was also filed prior to the said amendment. He supported the order passed by the Court below. He relied on AIR 2011 SC 1989 (Narmada Bachao Andolan v. State of M.P. and another), (2010) 7 SCC 417 (Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd. and others) and AIR 2014 Bom ( FB) 151 (Badrinarayan Shankar Bhandari and others v. Omprakash Shankar Bhandari). 4. I have heard learned counsel for the parties and perused the record. 5. Facts and averments regarding family tree are not disputed in reply Annexure P/4. It is also not in dispute that Shyamlata was the daughter of deceased Durga Prasad. The respondents have not chosen to controvert that applicant Anand Sood is son of deceased Shyamlata d/o Durga Prasad. The Court below has rejected the application by assigning following reasons :- (1) The suit earlier travelled to High Court and Supreme Court and matter is pending since 1983 whereas application under Order 1 rule 10 CPC is filed belatedly. (2) There is no mention of family tree in the plaint. (3) The applicant has not filed any document to show his right on the property. (4) In absence of document showing right/title and proper facts on record, the applicant cannot be treated as a necessary party. 6. It is seen that in the earlier round of litigation, the question whether petitioner/applicant is a necessary party was not the subject matter of controversy. Thus, the Court in earlier round had no occasion to address or give opinion on this aspect. In (2010) 7 SCC 417 (Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd. and others) the apex Court opined that Order 1 rule 10 CPC makes it clear that a Court may, at any stage of the proceedings, either upon or even without any application, direct that any of the following persons may be added as a party : (a) any person who ought to have been joined as plaintiff/defendant, but not added or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the Court is given the discretion to add as a party, any person who is found to be a necessary party or proper party (Para 14). In para 15 the apex Court described the meaning of “necessary party” and “proper party”. 7. A plain reading of para 14 aforesaid makes it clear that power under Order 1 rule 10 CPC can be exercised at any stage of proceedings. This Court in 2005 (2) M.P.H.T. 11 ( Sukhram v. Sarjubai and others) affirmed the order of lower appellate Court whereby impleadment of sisters as necessary party was upheld to avoid multiplicity of litigation. Thus, it is clear that the said application can be entertained at any stage of the proceedings. The petitioner has shown reasons for filing the said application at belated stage. The Court below has not doubted said reasons assigned in Annexure P/3. Similarly, when the facts/averment of family tree is not disputed in reply (Annexure P/4), the reasons mentioned by the Court below rejecting it is without any legal basis and liable to be interfered with. Similarly, the Court below has clearly erred in holding that applicant is not entitled to be impleaded because he has not filed any document in support of his claim. In a case where share in property is claimed on the basis of coparcenary right, no document at said stage was required to be shown. The applicant has shown necessary details in his application Annexure P/3 for the purpose of determination whether he is necessary/proper party 8. Respondent No.1/plaintiff filed its detailed reply. In para 3 of the reply, it was mentioned that plaintiff has impleaded all the necessary parties and Bhagwati and Shyamlata were not necessary party because on the date of filing of suit they had no legal right to get the property. This aspect and other grounds raised in the reply Annexure P/4 were not dealt with by the Court below. 9. On the basis of aforesaid analysis, it is clear that rejection of application (Annexure P/3) is based on incorrect, irrelevant and improper consideration. The Court below has failed to apply its mind on the basic consideration for the purpose of inclusion of a person as a necessary/proper party. 9. On the basis of aforesaid analysis, it is clear that rejection of application (Annexure P/3) is based on incorrect, irrelevant and improper consideration. The Court below has failed to apply its mind on the basic consideration for the purpose of inclusion of a person as a necessary/proper party. At the cost of repetition, in my opinion, the Court below has not dealt with the objections raised in reply regarding right of present petitioner on the date of filing of the suit. The order of Court below suffers from manifest procedural impropriety and irregularity. Resultantly, the order dated 7.10.2014 is set aside. The matter is remitted back to the Court below to rehear the parties on the aforesaid aspect and decide the application Annexure P/3 in accordance with law afresh. Parties are free to rely on the judgments cited above before Court below. 10. Petition is allowed to the extent indicated above. It is made clear that this Court has not expressed any opinion whether petitioner is a necessary or proper party. No costs. ....................