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Sanatan Das Vs. Smt. Ahalya Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 83 of 1980
Judge
Reported inAIR1983Ori8
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10(2)
AppellantSanatan Das
RespondentSmt. Ahalya Dei and ors.
Appellant AdvocateDevanand Misra and ;Deepak Misra, Advs.
Respondent AdvocateK.C.J. Ray, ;G.C. Mohapatra and ;P.C. Kar, Advs.
DispositionRevision allowed
Excerpt:
.....246, are not good law]. - he satisfied both the categories stated in order 1, rule 10 (2). firstly, he is a necessary party and otherwise also without him the question involved in the suit for partition cannot be effectually and completely adjudicated upon......alleged that the family originally consisted of two branches--one of bholanath and the other of binod. bholanath died in 1971 leaving behind the plaintiff and defendants 1 and 2 as his heirs. binod in his lifetime sold away his properties and died without any heir.3. during the pendency of the suit, the petitioner filed an application under order 1, rule 10 of the civil p. c. to be impleaded as a party claiming that he was the adopted son of binod and he was a necessary party to the suit and further, having regard to the nature of the suit and the allegations made, he ought to have been joined and his presence was necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit.4. in support of his assertion of adoption, he filed a registered.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision arises out of an order rejecting the application filed by the petitioner under Order 1, Rule 10 of the Civil P. C. to be impleaded as a party in the suit.

2. Opposite party No. 1 instituted a suit for partition claiming that the property had been divided amongst the other members of the family without her knowledge and excluding her. She alleged that the family originally consisted of two branches--one of Bholanath and the other of Binod. Bholanath died in 1971 leaving behind the plaintiff and defendants 1 and 2 as his heirs. Binod in his lifetime sold away his properties and died without any heir.

3. During the pendency of the suit, the petitioner filed an application under Order 1, Rule 10 of the Civil P. C. to be impleaded as a party claiming that he was the adopted son of Binod and he was a necessary party to the suit and further, having regard to the nature of the suit and the allegations made, he ought to have been joined and his presence was necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit.

4. In support of his assertion of adoption, he filed a registered deed of adoption dated 1-6-72. The learned Subordinate Judge in a very unsatisfactory and cryptic order rejected the petition. The order was so cryptic and perfunctory, that the entire of it can be quoted.

'Heard. As it appears from the prayer and document filed by the 3rd party, he is not a necessary party in the suit unless through his document is declared as the adopted son of his adoptive father. In the sense he is a complete stranger to the suit which is a partition one. Thus it is not fair on his part to allege against the plaintiff that she has preferred the suit with an ulterior motive against him. Thus this contention is rejected.'

5. A doubt creeps in if at all the learned Subordinate Judge applied his mind to the facts of the case keeping the law in view. It is difficult to understand what he means by stating in an order passed on an application under Order 1, Rule 10 of the Civil P. C. as :

'Thus, it is not fair on his part to allege against the plaintiff that she has preferred the suit with an ulterior motive against him.'

The sentence has hardly any relevance and justification in the order.

6. The object of Order 1, Rule 10 (2) is to bring before the Court, at the same time, all the persons who are parties to disputes relating to one subject-matter so that the disputes may all be determined at the same time without the delay, inconvenience, and expense of separate actions and trials and the principle underlying the rule is, that the court puts itself in the position of being able to effectually and completely adjudicate upon and settle all the questions involved in the suit. I am not entering in this judgment into a discussion as to who are necessary parties and who are proper parties; but the broad features of the provision are as indicated above, gathered from the decisions of various courts.

7. In paragraphs 3 and 4 of the plaint, it is alleged that the branch of Bholanath and Binod had 1/3 interest in the property and in paragraph 5 it is alleged that in 1942, Bholanath and Binod separated in mess, residence and status. Consequently Bholanath had 1/6i interest and Binod 1/6. In 1957, Bholanath lost his daughter and in 1962, his wife, and Bholanath passed away in 1971 leaving behind the plaintiff and defendant No. 1 as his heirs and so plaintiff had 1/12 interest and defendant No. 1. 1/12. Binod transferred his property in his lifetime and died leaving behind no heir and in paragraph 6, the plaintiff claims that she has 1/6 interest and defendant No. 1/6. It is difficult to understand how suddenly in paragraph 6, her interest became 1/6 from 1/12 as alleged in paragraph 5. Presumably the claim is on the basis that she and defendant No. 1 inherited the share of Binod. who as per the plaint allegation, died leaving behind no heir. These allegations supported the relief for partition.

8. In a suit for partition all persons who have interest in the subject-matter of the suit are necessary parties. A partition suit is not competent without a necessary party. This proposition of law is elementary.

9. Where one of the co-sharers/co-owners in a suit for partition has been left out on what ground the application of such co-sharer/co-owner be repelled? He satisfied both the categories stated in Order 1, Rule 10 (2). Firstly, he is a necessary party and otherwise also without him the question involved in the suit for partition cannot be effectually and completely adjudicated upon. Any decree passed would not be binding upon him and at his instance later on, the decree would be made infructuous and ineffective. There is a further consideration that all controversies arising in a suit should be given a quietus in that suit by bringing in all the parties on record. Thereby multiplicity of proceedings is avoided. In consideration of this principle, power has been conferred on the courts even to impleded a party suo motu.

10. If Sanatan, the petitioner and the applicant under Order 1, Rule 10 (2) is really the son of Binod, can he be excluded from the suit for partition? There is a registered document purported to have Been executed by Binod supporting prima facie the claim of adoption. Whether Sanatan would be able to establish his claim as adopted son of Binod is a different question which would be gone into in the suit and decided. But on the allegations and facts transpiring, it was not a case where the application under Order 1, Rule 10 (2) of the Civil P. C. should have been rejected.

11. The application was not a frivolous one. The applicant had prima facie established his bona fides, the plausibility of his claim and the genuineness of his interest in the litigation.

12. I am sure, had the learned Subordinate Judge applied his judicious mind with care and caution, the application would not have merited the fate it met with. In the result, I set aside the order dated 14-12-79, allow the petition filed by the petitioner and direct that he be impleaded as a defendant.

13. Disposal of the suit was unnecessarily delayed by more than one and a half year. I direct that the learned subordinate Judge would dispose of the suit expeditiously in accordance with law. The revision is accordingly allowed, but without any order as to costs.


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