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2017 DIGILAW 54 (ORI)

Pramila Dash v. Basanti Dash

2017-01-11

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 16.4.2015 passed by the learned 1st Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.631 of 2013 vide Annexure-6. By the said order, learned trial court rejected the application of the defendants under Order 1 Rule 10 C.P.C. to implead the purchasers as well as the daughter and son of defendant no.3 as defendants. 02. The opposite party as plaintiff instituted the suit for partition, declaration that the ‘B’ schedule property is the joint family property and permanent injunction impleading the petitioners as defendants. Pursuant to issuance of summons, two written statements had been filed, one by defendant nos.1 and 2 and another by defendant nos.3 & 4 refuting the allegations made in the plaint. The defendants have challenged the maintainability of the suit on the ground of non-joinder of necessary parties. While the matter stood thus, the defendants filed an application under Order 1 Rule 10 C.P.C. praying, inter alia, to implead the transferees and daughter and son of defendant no.3 as defendants. No objection was filed by the plaintiff. Learned trial court came to hold that the application filed by the defendants under Order 7 Rule 11 C.P.C. for rejection of plaint has been rejected. Further the plaintiff is the master of the suit and he cannot be compelled to implead the intervenors as defendants. Held so, learned trial court rejected the application on 16.4.2015. 03. Heard Mrs. Supriya Patra, learned counsel for the petitioners and Mr. Satya Shiva Dash, learned counsel, appearing on behalf of Mr. A.P. Bose, learned counsel for the opposite party. 04. Really two points arise for consideration of this Court; (1) Whether the court can implead a party as defendant against the wish of the plaintiff ? (2) Whether the intervenors are necessary or property parties to the suit ? Point No.1 05. An identical question came up for consideration before this Court in Indrajit Dandasena and others v. Mangal Charan Dandasena and others, 57 (1984) CLT 31. Learned Single Judge, before whom the revision came up for hearing, has observed that there are cleavage of decisions of this Court on the point. The matter was referred to a larger Bench. This Court went in-depth into the matter and held that the maxim “dominus litis” means the plaintiff is the master of suit. Learned Single Judge, before whom the revision came up for hearing, has observed that there are cleavage of decisions of this Court on the point. The matter was referred to a larger Bench. This Court went in-depth into the matter and held that the maxim “dominus litis” means the plaintiff is the master of suit. It was further observed that the rule of dominus litis is subject to the powers of the Court under Order 1, Rule 10(2) of the Code inasmuch as the said rule authorizes the Court to direct addition of further parties to the suit even suo motu where it appears that such impletion is just and the party who has not been joined in the litigation by the plaintiff is either a necessary or a proper party. The exercise of discretion by the Court in cases where it satisfies the requirements of the rule would be made nugatory if the controlling authority would be the plaintiff by application of the rule of dominus litis. As a matter of fact, while considering as to whether impletion of a party is necessary to pass an effective and executable decree, or to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit the Court is required to go into the question as to whether the discretion is to be exercised by it in the facts and circumstances of the case. Point No.2 06. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 07. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 08. 08. In a suit for partition, the plaintiff is bound to implead as defendant : (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly. (Article 332 of Mulla Hindu Law). Article 332 further provides that it is desirable that the following persons should be made parties; though not necessary parties, they are proper parties to the suit: (i) a mortgagee with possession of the family property or of the undivided interest of a coparcener; (ii) simple mortgagees of specific items of the family property; (iii) purchaser of the undivided interest of a coparcener; (iv) persons entitled to provision for their maintenance and marriage, i.e., widows, daughters, sisters and such like and distinguished heirs; (v) any person entitled to maintenance from the family. The plaintiff may also implead any other coparcener or any person interested in the family property such as a mortgagee or a lessee. Such a person may himself apply and be made a party. 09. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that Somnath Dash was the common ancestor of the parties. He had two sons, namely, Prana Krushan and Bipin Bihari. The plaintiff and defendants are the descendants of the common ancestor. In paragraph 4 of the plaint, the plaintiff asserts that the suit property has been recorded jointly in the name of Prana Krushna and Bipin Bihari. The same has not been partitioned by metes and bounds. Defendant nos.1 and 2 in paragraph 14 of the written statement have stated that during life time of Prana Krushna Dash, he had sold some property for legal necessity. The said property cannot the subject matter of partition without impleadment of the vendees. 10. The policy of law is to avoid multiplicity of proceedings. In an application for impleadment, the court has to see whether the intervenor is necessary or proper party to the suit. Learned trial court has not rendered any finding to that effect. The said property cannot the subject matter of partition without impleadment of the vendees. 10. The policy of law is to avoid multiplicity of proceedings. In an application for impleadment, the court has to see whether the intervenor is necessary or proper party to the suit. Learned trial court has not rendered any finding to that effect. The purchasers of the undivided interest of a coparcener are proper parties in the suit for partition, but not the son and daughter of the defendant no.3. 11. In the wake of aforesaid, the order dated 16.4.2015 passed by the learned 1st Additional Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.631 of 2013 is quashed. The learned trial court shall implead the purchasers of the undivided interest of the coparcener as defendants. The petition is allowed. No costs.