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2015 DIGILAW 169 (JK)

Rajesh Magotra v. Nalini Sharma

2015-04-09

JANAK RAJ KOTWAL

body2015
Judgment : 1. This is a revision petition. 2. Heard. I have perused the record. 3. Respondent No. 1, Nalini Sharma, has filed a suit against the petitioner, who is her brother and their mother, Pushpa Mangotra and two sisters, Meera Sharma and Mena Sharma seeking declaration that oral partition recorded in the memorandum of partition dated 04.06.1999 between the petitioner and four other, namely, Kamlesh Magotra, Suresh Magotra, Sunil Magotra and Sunita Magotra is void and inoperative in so far as it affects rights of respondent No. 1 (plaintiff) and therein defendants Nos. 2 to 4 in the property of late Shri Jagdish Chander Magotra. Besides, she has sought partition of the property by meets and bounds. 4. As per the petitioner, respondent Nos. 2 & 3 (defendants-3 &4) are supporting the respondent No. 1 (plaintiff) in that suit. Petitioner (defendant No.1) and defendant No. 2 (now stated dead), however, without filing their written statement filed an application in terms of Order 1 Rule 13 read with Order 7 Rule 11 CPC seeking dismissal of the suit for non-joinder of necessary parties. They contended that aforementioned Kamlesh Magotra, Suresh Magotra, Sunil Magotra and Sunita Magotra successors-in interest of late Shri Jatinder Nath Magotra are necessary parties to the suit. Besides, they also contended that eight other persons named in the application, who are daughters of late Shri Shriniwas Magotra, are also necessary parties to the suit. 5. In the first round the learned trial court vide order dated 07.05.2008 without passing final order in the application gave opportunity to the plaintiff to implead aforementioned eight persons. In regard to the other four persons aforementioned, the learned trial court observed that the matter shall be accorded consideration as to whether they are necessary parties or not only when defendant No. 2 puts forth his claim. 6. Order dated 07.05.2008 was set aside by this court in Civil Revision No. 112/2008 vide order dated 15.11.2011 with a direction to the trial court ‘to hear the applicants afresh and pass appropriate orders’. The trial court has passed fresh order dated 14.08.2014. Learned court again deferred disposal of the application till defendant No. 1 (herein petitioner) and defendant No. 2 (stated dead) file their written statement. 7. Petitioner (defendant No. 1) has assailed order dated 14.08.2014 in this revision petition. The trial court has passed fresh order dated 14.08.2014. Learned court again deferred disposal of the application till defendant No. 1 (herein petitioner) and defendant No. 2 (stated dead) file their written statement. 7. Petitioner (defendant No. 1) has assailed order dated 14.08.2014 in this revision petition. Petitioner seeks setting aside of the impugned order and allowing of his application filed before the trial court. 8. I may cull out the operative paragraphs of the impugned order: “7.It is strange that defendants No. 1 & 2 while filing the present application have not spelt their stand as to whether the daughters are necessary parties or not. They throw the entire question upon the plaintiff by averring in the application that” not only this, the plaintiff, while saying on one hand that suit property was inherited in succession by two sons of late Shri Shreeniwas Magotra, has omitted to make mention of eight daughters of late Shri Shreeniwas Magotra who were then equally the successors of late Shri Shreeniwas keeping in view tone and tenor of the suit of the plaintiff”. 8.Defendant No. 1 has partitioned the suit property but there is no defence on his part showing that the suit property was partitioned after taking the no objections of the eight daughters. Whether the daughters are necessary parties or not can be considered only after the defendant No. 1 and 2 file their written statements. Hence the disposal of the present application is kept in abeyance till defendant No. 1 & 2 file their written statements. Put up file for written statement of defendant No. 1 & 2 on 27.08.2014.” It 9. In regard to maintainability of the revision petition, Mr. Rahul Bharti, learned counsel for the petitioner submitted that application of the petitioner (defendant No. 1) and defendant no. 2 was aimed at seeking dismissal of the suit for non-joinder of necessary parties. Mr. Bharti argued that as per the proviso to Rule 9 of Order 1 CPC a suit suffering from non-joinder of a necessary party is liable to be dismissed and Rule 13 makes it obligatory for the opposite party to raise objection in regard to non-joinder or mis-joinder of the parties at an earliest. Mr. Bharti argued that as per the proviso to Rule 9 of Order 1 CPC a suit suffering from non-joinder of a necessary party is liable to be dismissed and Rule 13 makes it obligatory for the opposite party to raise objection in regard to non-joinder or mis-joinder of the parties at an earliest. The application, therefore, was filed by the petitioner and defendant No. 2 in accordance with Rule 9 read with Rule 13 and the learned trial court should have disposed of the same by holding either that the four successors-in-interest of Jatinder Nath Magotra named in the plaint and the eight daughters of late Shri Shriniwas were necessary parties to the suit or not and if they or either of them were found to be necessary party(ies), the suit should have been dismissed for non-joinder of the necessary party (ies). 10. On the strength of the application moved before the learned trial court and averments in the writ petition, Mr. Bharti submitted further that respondent No. 1 (plaintiff) is seeking declaration in respect of a memorandum of partition to which petitioner (defendant No. 1) is the first party and Kamelsh Magotra, Suresh Magotra, Sunil Magotra and Sunita Magotra (successors in interest of Jatinder Nath Magotra) are the second party so suit cannot be maintained against petitioner alone without impleading the second party to the memorandum as co-defendants in the suit. Mr. Bharti submitted further that even the eight sisters of Jagdish Chander Magotra and Jatinder Nath Magotra are necessary parties to the suit. Mr. Bharti also assailed the impugned order on the ground that the same is not even a shade different that the order dated 07.05.2008 earlier passed by the learned trial court when the suit was pending in the court of Additional District Judge, Jammu, which was set aside by this Court vide order dated 15.11.2011 passed in Civil Revision No. 112/2008 with a clear direction to the learned trial court to hear the petitioner and pass appropriate orders. Mr. Bharti thus concluded that the learned trial court should have decided the application on merit instead of deferring decision till filing of the written statement. 11. Per contra, Mr. Mr. Bharti thus concluded that the learned trial court should have decided the application on merit instead of deferring decision till filing of the written statement. 11. Per contra, Mr. L. K. Sharma, learned Senior Advocate, appearing for respondent (plaintiff) firstly supported the impugned order submitting that question whether a person is or not a necessary party to a suit can be considered only on the basis of the pleadings of the parties and not on the basis of an application filed prior to the written statement. Mr. Sharma relied upon a reported judgment of Rajasthan High Court in Mahaveer Dass vs. M/s Ganeshmal Jeevraj, AIR 1992 Rajasthan 29. Mr. Sharma submitted vehemently that plaintiff s suit is confined only to declaration in regard to partition of the property left behind by her grandfather Shri Shriniwas Magotra that had fallen to the share of her father, Shri Jagdish Chander Magotra and in that the daughters of late Shri Shriniwas Magotra and successors-in-interest of Shri Jatinder Nath Magotra are not necessary parties to the suit. 12. Having compared the impugned order with the earlier order passed by the learned trial court on 07.05.2008 and having gone through the order dated 15.11.2011 passed by this Court in the revision against trial court s order dated 07.05.2008 and further having perused the record on the trial court file, in particular averments in the plaint, application in question and objections thereto filed by respondent No. 1 (plaintiff), I cannot but state at the outset that learned judge of the trial court has been unable to comprehend the genesis and the actuality of the dispute between the parties to the suit and in that had been unable to deal with the petitioner’s application in its right perspective even after the earlier order was set aside by this Court. I cannot but agree with learned petitioner s counsel that the impugned order in effect is no different than the earlier order dated 07.05.2008 because in both the orders trial court has deferred decision in the application. 13. Rule 13 of Order 1 CPC as a general rule enjoins upon parties to a suit to raise the plea of mis-joinder or non-joinder of parties, if any, at the earliest possible opportunity and in all cases where issues are to be settled, at or before settlement of issues. 13. Rule 13 of Order 1 CPC as a general rule enjoins upon parties to a suit to raise the plea of mis-joinder or non-joinder of parties, if any, at the earliest possible opportunity and in all cases where issues are to be settled, at or before settlement of issues. On its plain reading Rule 13 would render it beyond question that such a plea, when sought to be raised by the defendant, can be raised in the written statement but there would be nothing wrong in doing so by way of an application even before and without filing of the written statement. Whenever such a plea is raised, either by way of an application or in the written statement, the court is duty bound to adjudicate upon it before proceeding ahead with the proceedings. Adjudication upon a plea of non-joinder of a necessary party immediately after it is raised is even more necessary because under proviso to Rule 9 suit is liable to be dismissed for non-joinder of a necessary party. The court may, however, after according consideration on the basis of available material, feel the necessity of deferring adjudication on the plea raised by way of an application till filing of the written statement as the outer limit of adjudication on the plea is framing of the issues. 14. It was expected of the learned trial court to make an endeavour on the basis of the available material to adjudicate upon as to whether the eight daughters of the common ancestor, late Shri Shriniwas Magotra, on one hand and/or the four successors-in-interest of late Shri Jatinder Nath Magotra on the other were the necessary parties to the suit or not. If, however, in the opinion of the trial court adjudication was not possible on the basis of the available material, learned court should have recorded cogent reasons as to how it was not and deferred the adjudication till filing of the written statement. 15. To make out as to how the learned trial court has not endeavored well and was unable to deal with the application in its right perspective, some facts, which are admitted or indisputable on the basis of the record on the trial court file, are required to be stated briefly: 14 (a) Late Shri Jagdish Chander Magotra and late Shri Jatinder Nath Magotra were the two sons of late Sh. Shriniwas Magotra. Shriniwas Magotra. Besides, late Shri Shriniwas Magotra has eight daughters, namely, as per petitioner s application, Saraswati Devi, Koushyala Devi, Shanti Dogra, Santosh Khajuria, Satya Bhawan, Rajeshwar Pandit, Sarda Sharma and Kamla Devi. Respondent No. 1 (plaintiff), petitioner (defendant No. 1) and respendent Nos. 2 &3 (defendants No. 3 & 4) are the four children of late Shri Jagdish Chander Magotra and defendant Nos. 2 (now dead) was his wife. Late Shri Jatinder Nath Magotra was survived by Kamelsh Magotra (wife) Suresh Magotra and Sunil Magotra (sons) and Sunita Magotra (daughter). 14 (b) By virtue of the memorandum of partition dated 04.06.1999, which is subject matter of the suit, the property of late Shri Shriniwas Magotra was partitioned between the petitioner (defendant no. 1), claiming to be the successor-in-interest of late Sh.Jagdish Chander Magotra, as first party and Kamelsh Magotra, Suresh Magotra, Sunil Magotra and Sunita Magotra (supra), claiming to be the successors-in-interest of late Shri Jatinder Nath Magotra as second party. It is stated in the memorandum of partition that late Shri Shriniwas Magotra in his life time had settled all his immoveable property in two equal shares in favour of his sons, Jagdish Chander Magotra and Jatinder Nath Magotra. It be noticed that while executing memorandum of partition, parties thereto had excluded the eight daughters of late Shri Shriniwas Magotra as also the successors-in-interest of Jagdish Chander Magotra, other than the petitioner, from their claim to share in the property left behind by late Shri Shriniwas Magotra. 14 (c) It is important to note that in the suit filed by respondent No. 1, the memorandum of partition has been assailed and partition recorded therein has been sought to be declared null and void only to the extent it affects the right of plaintiff and defendant Nos. 2 to 4 in the property of Shri Jagdish Chander Magotra. This aspect has been made clearer by the respondent No. 1 (plaintiff) in her objections to the application in question filed in the trial court. She in those objections has clearly stated that she has challenged the partition so far as it deprives the plaintiff and defendant Nos. 2 to 4 in the property of Shri Jagdish Chander Magotra. This aspect has been made clearer by the respondent No. 1 (plaintiff) in her objections to the application in question filed in the trial court. She in those objections has clearly stated that she has challenged the partition so far as it deprives the plaintiff and defendant Nos. 3 & 4 of their share in the property fallen to the share of Shri Jagdish Chander Magotra, which has been taken over exclusively by the petitioner (defendant No.1.) She has made it further clear that she and defendant No. 3 & 4 have not challenged the partition to the extent of the property fallen to the share of the heirs of Shri Jatinder Nath Magotra and has laid claim only to the extent of defendant No. 1 having taken the entire property to the exclusion of plaintiff and other defendants. Plaintiff has also stated in her objections that the daughters of Shri Shriniwas Magotra have never laid their claim to the property left behind by late Shri Shriniwas Magotra, who had died long back and the property was exclusively enjoyed by Jagdish Chander Magotra and Jatinder Nath Magotra. 16. Learned trial court should have adjudicated upon the plea about non-joinder of the necessary parties in light and backdrop of the aforementioned admitted/ indisputable position arising from the material available before the trial court, having regard to the relief claimed in the suit and should have recorded a positive decision as to whether the eight daughters of late Shri Shriniwas Magotra and successors-in-interest of late Shri Jatinder Nath Magotra are necessary parties to the suit or not. Necessity of waiting for written statement does not arise at all. Learned trial court has thus erred in dealing with the application and deferring decision thereon and impugned order, therefore, is liable to be set aside. 17. In regard to the application in question, petitioner’s objection, firstly, is that respondent No. 1 (plaintiff) is seeking declaration about the memorandum of partition, to which, besides the petitioner being first party, the successors-in-interest of Shri Jatinder Nath Magotra are the second party, who are necessary parties to the suit and without their presence the suit is not maintainable. Likewise, petitioner s objection, secondly, is that all the eight daughters of late Shri Shriniwas Magotra are also necessary parties to the suit. 18. Likewise, petitioner s objection, secondly, is that all the eight daughters of late Shri Shriniwas Magotra are also necessary parties to the suit. 18. In regard to the eight daughters of late Shri Shriniwas Magotra, it is seen that parties to the memorandum of partition, that is, the petitioner and the successors-in-interest of late Shri Jatinder Nath Magotra, have clearly stated therein that late Shri Shriniwas Magotra in his lifetime had settled all the immovable property owned by him in two equal shares in favour of their predecessors-in-interest, that is, his two sons namely, Jagdish Chander Magotra and Jatinder Nath Magotra. Similar is the stand taken by the respondent No. 1 (plaintiff) in para-2 of her plaint, wherein it is clearly stated that after the death of Shri Shriniwas Magotra, whole of the property devolved upon his two sons, Jagdish Chander Magotra and Jatinder Nath Magotra. This being the stand of the parties to the suit, the petitioner cannot be heard saying that the daughters of late Shri Shriniwas Magotra are necessary parties to the suit. 19. In regard to the successors-in-interest of late Shri Jatinder Nath Magotra, it is seen that respondent No. 1 (plaintiff) has no grievance against one share in the whole property having been given to them by virtue of the memorandum of partition. Their grievance is against the entire share of their predecessor-in-interest, Shri Jagdish Chander Magotra, having been given to one son only, that is, petitioner, in exclusion of the other successors-in-interest. As stated hereinabove, respondent No. 1 (plaintiff) has assailed the memorandum of partition and sought it to be declared null and void only to the extent it affects her right and that of defendant Nos. 2 to 4 in the property of the share of their predecessor-in-interest, Shri Jagdish Chander Magotra. Given the relief claimed by respondent No. 1 (plaintiff), successors-in-interest of late Shri Jatinder Nath Magotra too cannot be held necessary parties to the suit. 20. Necessary party to a suit is one without whom no effective decree in favour of the plaintiff can be passed or decree that may be passed might be inexecutable and infructuous. To restate briefly, suit filed by respondent No. 1 is confined to that part of the property, which by virtue of the impugned memorandum of the partition has been given to the petitioner only. To restate briefly, suit filed by respondent No. 1 is confined to that part of the property, which by virtue of the impugned memorandum of the partition has been given to the petitioner only. It has nothing to do with that portion of the party, which by virtue of the impugned memorandum has gone to the share of successors-in-interest of late Shri Jatinder Nath Magotra. Admitted ground of the both the parties to the suit is that the sisters of their predecessors-in-interest, that is, daughters of common ancestor, late Shri Shriniwas Magotra, from whom the property has devolved, have no interest in the property. Petitioner’s objections, therefore, not only are without any substance but misconceived too. 21. For all what has been said and discussed above, this revision petition is partially allowed and as a result: (i) Impugned order dated 14.08.2014 passed by the learned trial court is set aside. (ii) Application under Order 1 Rule 13 read with Order 7 Rule 11 filed by the petitioner (defendant No. 1) and defendant No. 2 is also dismissed. 22. It is noticed that the proceedings in the suit filed far back in the year, 2004 are still at its inception and revolving around the application (supra), which was filed in the year, 2005. It is expected that the learned trial court shall make endeavour for expeditious proceedings hereafter, grant shorter adjournments not more than 15 days at a time and ensure that the proceedings are effectively conducted on every date of hearing. 23. Record of the trial court be remitted back along with a copy of this order. The parties shall cause their appearance before the trial court on 27.04.2015.