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2017 DIGILAW 759 (ORI)

Meera Patra v. Rekha Pradhan

2017-07-19

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 24.12.2014 passed by the learned Civil Judge (Sr. Divn.), Baripada in C.S. No. 467 of 2013, whereby and whereunder learned trial court rejected the application of the plaintiff under Order 6 Rule 17 C.P.C. to delete the name of State Bank of India-defendant no.6 and delete few paragraphs with regard to mortgage of the property in favour of defendant no.6. 2. The petitioner as plaintiff instituted the suit for partition impleading the opposite parties as defendants. It is, inter alia, pleaded that the suit property is the joint family property of defendant nos.1 to 5. Defendant nos.2 and 3 in connivance with the defendant nos.1, 4 and 5 clandestinely mortgaged the property in favour of State Bank of India, defendant no.6. Defendant no.6 filed written statement. While the matter stood thus, plaintiff filed an application purportedly under Order 23 Rule 1 C.P.C. for withdrawal of the suit against defendant no.6. Defendant no.6 filed objection to the same stating therein that the suit property had been mortgaged in favour of the Bank. Since the loanee became a defaulter, the Bank had taken possession of the same under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as “SARFAESI Act”). By order dated 24.11.2014, learned trial court rejected the said application. The said order attained its finality. Again another application was filed by the plaintiff under Order 6 Rule 17 C.P.C. to amend the plaint. In the proposed amendment, the plaintiff sought to delete the name of defendant no.6 from the cause title of the plaint and delete certain paragraphs of the plaint with regard to mortgage of property in favour of the defendant no.6. Learned trial court rejected the same. 3. Heard Mr. P.K. Swain, learned counsel for the petitioner and Mr. P.V. Balakrishna, learned counsel for the opposite party no.6. None appeared for the opposite party nos.1 to 5. 4. Mr. Swain, learned counsel for the petitioner submitted that Bank is neither necessary nor proper party in a suit for partition. In view of the same, the petition was filed to delete the name of defendant no.6. Learned trial court without considering the matter in its proper perspective rejected the same. 4. Mr. Swain, learned counsel for the petitioner submitted that Bank is neither necessary nor proper party in a suit for partition. In view of the same, the petition was filed to delete the name of defendant no.6. Learned trial court without considering the matter in its proper perspective rejected the same. He relied on the decision of the apex Court in the case of Jagdish Singh v. Heeralal and others, AIR 2014 SC 371 . 5. Per contra, Mr. Balakrishna, learned counsel for the opposite party no.6 submitted that property had been mortgaged by the defendant nos.2 and 3 in favour of defendant no.6-Bank. The loanee became chronic defaulter for which the Bank had taken possession of the same under the SARFAESI Act. Thus, the Bank is a proper party. 6. 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. 7. 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. 8. 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). 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 inescapable conclusion is that the Bank is a proper party to the suit. 9. The decision cited by the learned counsel for the petitioner is distinguishable on facts. In the said case, the appellant was an auction purchaser. In respect of the land in question, it was brought to sell for recovery of amount under the SARFAESI Act. The appellant was not put in possession of the property in question even though the auction was confirmed. The appellant came to know that respondent nos.1 to 5 have filed civil suit in the court of the District Judge, Barwani for a declaration of title, partition and permanent injunction against respondent nos.7 to 9 and others in which the appellant and the Bank were also made parties. On a survey of earlier decision, the apex Court held that Sec.34 of the SARFAESI Act clearly states that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and held that jurisdiction of the civil court is completely barred, so far as the measure taken by a secured creditor under sub-sec.(4) of Sec.13 of the SARFAESI Act. 10. In the instant case, neither the Bank nor the borrower nor the guarantor approached the civil court against the measure taken by the Bank under the SARFAESI Act. Rather the plaintiff instituted the suit for partition pleading inter alia that clandestinely the defendant nos.2 and 3 mortgaged the suit property in favour of the Bank. 10. In the instant case, neither the Bank nor the borrower nor the guarantor approached the civil court against the measure taken by the Bank under the SARFAESI Act. Rather the plaintiff instituted the suit for partition pleading inter alia that clandestinely the defendant nos.2 and 3 mortgaged the suit property in favour of the Bank. The earlier order has attained its finality. Thus, the subsequent application is an abuse of the process of the court. In the event, the name of the defendant no.6 is deleted and preliminary decree is passed allotting the share in favour of the party, the same will give rise to multiplicity of proceeding. The defendant no.6 is proper party to the suit. 11. In wake of aforesaid, the petition, sans merit, is dismissed. No costs.