Alkabai Baburao Mahajan And ... vs Subhash Namdeo Patil And Others
2021 Latest Caselaw 15076 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           WRIT PETITION NO. 3754 OF 2015


1. Sou. Alkabai w/o Baburao Mahajan,
Age : 49 years, Occupation : Household.

2. Surekhabai d/o Keshav Mahajan,
Age : 44 years, Occupation :
Household. Both R/o Waghod,
Taluka, Raver, District : Jalgaon.                         ..PETITIONERS
                                                           [Orig.plaintiffs]

      VERSUS


1. Subhash s/o Namdeo Patil,
   Age : 60 years, Occupation :
  Agriculture.

2. Ravindra S/o Namdeo Patil,
   Age : 56 years,
   Occupation : Agriculture.

3. Namdeo s/o Khushal Mali,
   Dead through his
   legal representative-

3-A. Ramkrishna s/o Namdeo Mahajan,
  Age : Major,
  Occupation : Agriculture,

3-B Kashinath s/o Namdeo Mahajan,
  Age : Major, Occupation : Agriculture.
  All R/o Waghod, Taluka : Raver
  District : Jalgaon.                                      ..RESPONDENTS
                                                           [Orig.Defendants]




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                                     .....
Mr. Dhananjay Mane, Advocate holding for Mr. Milind Patil for Petitioner
Mr. A.J.Patil, Advocate for Respondent Nos. 1, 2, 3-A and 3-B
                                     .....

                                    CORAM :    MANGESH S. PATIL, J.

JUDGMENT RESERVED ON : 13.10.2021 JUDGMENT PRONOUNCED ON : 20.10.2021

JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. The learned

advocates for the respondents waive service. With the consent of both the

sides the matter is heard finally at the stage of admission.

2] The petitioners are impugning the order passed by the learned Judge of

the trial Court in their Suit for partition and separate possession whereby their

application (Exh. 88) seeking leave to withdraw the Suit under Order XXIII

Rule 1(3) of the Civil Procedure Code with liberty to file a fresh Suit has been

rejected.

3] The facts as are relevant for the decision of the writ petition may

be summarized as under :

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One Namdeo was having two wives Yenabai and Dhanabai. He

died in 1971. Both his wives are also no more. Yenabai is survived by two

daughters Dwarkabai and Yashodabai whereas Dhanabai is survived by

respondent Nos. 1 and 2, one more son Ravindra and three daughters

Nababai, Vimalbai and Kamalbai. Since Namdev died intestate without

having a male issue, the petitioners filed the Suit for general partition of all

the properties left behind by him and separate possession of their shares.

4] The respondent Nos. 1 and 2 contested the Suit by filing their

separate written statements. They admitted the genealogy and inter alia

raised an objection regarding non-joinder of parties namely Ravindra and

other sharers. The issues were framed and the matter went for trial. After the

evidence was over and the Suit was listed for hearing arguments, the

petitioners filed application for amendment of plaint under Order VI Rule 17

of C.P.C. (Exh. 85) as also seeking addition of the parties under Order I Rule

10 of the C.P.C. The respondent Nos. 1 and 2 opposed that application. The

learned Judge by the order dated 5.12.2014 rejected the application on the

ground that already by virtue of order dated 13.2.2009 on petitioner's

application (Exh. 28) they were allowed to carry out amendment and to add

parties. The petitioners had failed to carry out the amendment and proceeded

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with the hearing of the Suit.

5] However, within a month of rejection of application for

amendment and addition of parties, the petitioners submitted the application

under Order XXIII Rule 1(3) of the C.P.C. on 13.2.2015, contending that since

the daughters are also entitled to claim a share and as Yashodabai and other

sisters of respondent Nos. 1 and 2 were not the parties to the Suit there was a

formal defect and it would fail and sought the permission of the Court to

withdraw the Suit with liberty to file a fresh Suit on the same cause of action.

After hearing both the sides, by the order which is impugned in this writ

petition, the learned Judge of the trial Court has rejected the application on

the ground that the application was filed at a belated stage and if the

permission was granted it would result in harassment of the respondents as

the matter had reached the stage of final arguments.

6] The learned Advocate for the petitioners submits that though the

petitioners were at fault in not seeking amendment of the plaint promptly, so

as to implead the necessary parties, they had made such an attempt belatedly.

Since their application for amendment and addition of parties (Exh. 85) was

rejected, they faced awkward situation and within a month of such rejection

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had moved the present application (Exh. 88) under Order XXIII Rule 1(3) of

the C.P.C. Since Yashodabai and other sharers were not parties to the Suit

albeit the petitioners have been claiming a general partition and separate

possession, it was certain that the Suit would fail. It is a formal defect which

could have been allowed to be cured, either by allowing the amendment or

granting permission to withdraw the Suit with liberty to file a fresh Suit on

the same cause of action. No prejudice would have been caused to the

respondents. Their harassment could easily have been addressed by paying

sufficient costs to them. Instead of doing that the learned Judge has taken a

hyper technical view which is not in the interest of justice. Since it is a matter

of partition and separate possession of a joint property inherited from the

maternal ancestor claiming through the respective mothers of the parties the

dispute would not end by mere dismissal of the Suit. He would submit that

the petitioner's request ought to have been allowed. The order is illegal and

may be quashed and reversed.

7] The learned Advocate Mr. Patil for the respondents would submit

that the petitioners' claim suffers from delay and latches. The Suit was filed in

the year 2006, the written statements were filed promptly raising objection on

the ground of non-joinder of all the sharers and still the petitioners proceeded

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to participate in the hearing and allowed the Suit to reach to the fag end. It is

at that stage when merely the arguments were to be heard, initially they made

request for amendment of the Suit and addition of parties by submitting

application (Exh. 85). Though the application was rejected, no attempt was

made to challenge that order, instead the present application (Exh. 88) is

moved to cure all the defects. The conduct of the petitioners is not reasonable

and bona fide. The respondents have already been put to lot of harassment

since the litigation is pending for last more than 15 years, even they have

been made to face the present writ petition. Therefore, no fault can be found

with the order passed by the learned Judge in refusing to concede to the

request of the petitioners.

8] The learned Advocate Mr. Patil would then refer to the Division

Bench decision of this Court in the case of The Asian Assurance Company

Limited V/s Madholal Sindhu and Ors.; AIR 1950 Bombay 378, and the

decision of the Gujrat High Court which in turn relies upon the Division Bench

decision of this Court, in the case of M/s Pranjivandas Virjibhai and Ors. V/s

Pravinkumar Mohanlal Modi; AIR 2011 Gujarat 89. He would submit that

non-joinder of necessary parties cannot be a ground to grant permission under

Order XXIII Rule 1(3) of the C.P.C.

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9]              Lastly, the learned Advocate Mr. Patil would submit that the

petitioners are mischievous inasmuch as in spite of current state of affairs and

the litigation between the parties, even while the present petition is pending

in this Court, they have filed a fresh Suit bearing R.C.S. No. 67/2021 for the

self same relief of partition and separate possession by arraying all the sharers

without there being any leave therefor, they are not entitled to any relief.

10] Before adverting to the matter in controversy, it is necessary to

note that the learned Advocate for the petitioners on instruction submits that

though a fresh Suit was filed as is being pointed out by the learned Advocate

Mr. Patil, the petitioners have done so erroneously and have taken prompt

steps and have withdrawn it on 29.6.2021.

11] Now, turning to the matter in controversy, the facts are not in

dispute. Even there is no dispute as regards the genealogy. The petitioners

are claiming a share in the property left behind by the maternal common

ancestors of both the sides viz. Namdeo Omkar Wankhede. Admittedly, he

was survived by two daughters Yenabai through whom the petitioners are

claiming a share and Dhanabai who is the mother of the respondents Subhash,

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Prakash one more son Ravindra and three daughters. Since the source of the

property is not in dispute, one need not dealve deep. These facts are sufficient

to indicate that all these persons who have been left out viz. Yashodabai,

Nababai, Vimalbai, Kamalbai and Ravindra are indeed necessary parties to the

Suit and ought to have been impleaded. It is also a fate-accompli that in their

absence the Suit is bound to fail.

12] The question here is as to if such failure to add the necessary

parties can be said to be a formal defect. The whole emphasis of the learned

Advocate Mr. Patil for the respondents is on the Division Bench decision in the

case of Asian Assurance Company Limited (Supra). I have carefully gone

through this decision. The learned single Judge had granted permission under

Order XXIII Rule 1(2) of the predecessor of the present C.P.C. and which

provision was similar to the provision contained in Order XXIII Rule 1(3) of

the C.P.C. The plaintiff therein had pointed out as a formal defect that the two

persons who ought to have been made parties to the Suit were not so made

and the Suit suffered from the defect of non-joinder. It was observed by the

Division Bench that that Suit could not have failed by reason of non-joinder.

It was further observed that the easiest and the simplest thing for the plaintiff

to have done was to have those persons made parties to the Suit. In view of

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such observations in my considered view it cannot be said that the Division

Bench has laid down a ratio to the effect that non-joinder of necessary parties

cannot be a formal defect contemplated under Order XXIII Rule 1(3) of the

C.P.C. Besides, the Division Bench has also observed that the defect of non-

joinder can also be cured by adding the parties who have been left out.

Therefore, the respondents are not entitled to derive any benefit from this

decision.

13] On the contrary, as is suggested by the Division Bench (Supra)

the petitioners did make an attempt to add the parties by moving application

(Exh. 83). Unfortunately, the learned Judge rejected that application on

5.12.2014 (Exh. 85) on the ground of delay and latches. Instead of

challenging that order the petitioners preferred the present application (Exh.

88) under Order XXIII Rule 1(3) of the C.P.C. Unfortunately, once again the

learned Judge has rejected the application on the ground of delay and latches

and on the ground that the Suit has reached the stage of final arguments.

14] It is to be borne in mind that it is a Suit for partition and separate

possession of joint properties. Even if it fails, for non-joinder of necessary

parties, the status of the property would not alter. The remaining sharers who

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have been left out and even the respondents herein would still be entitled to

file a separate Suit for partition and separate possession. Meaning thereby,

the dispute between the parties would not abate unless their shares are

severed by metes and bounds. If that does not happen in the present Suit,

there is every possibility that it would happen in future at the instance of

some other sharers. Merely by dismissal of the present Suit the petitioners'

right to claim a share would not cease. If this is the state of affairs, though

technically the petitioners are to be blamed for the delay and latches, a

pragmatic view needs to be taken.

15] There is one more aspect. Since the genealogy was admitted by

the parties even the trial Court could have called upon the petitioners to add

the parties no sooner the objection raised by the respondents was noticed,

before proceeding with the trial. The trial Court is not supposed to act as an

umpire but is expected to take active part in conducting and concluding a lis.

Therefore, even if the plaintiffs are to be blamed for the latches, even the trial

Court is equally remiss in conducting the trial.

16] Further if really the respondents wanted the sharers who were

not added as parties to be so added, they also could have taken a pragmatic

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stand when the petitioners had filed the application (Exh. 85) seeking

addition of the parties.

17] All in all the Suit is bound to fail in the absence of necessary

parties. Since it is a Suit for partition and separate possession of joint

property, the dispute would not end by mere dismissal of the Suit. Though the

petitioners are indeed lax in prosecuting the Suit, the respondents having

faced a lot of harassment, it would have been just and proper for the learned

Judge to have imposed heavy costs for granting leave to withdraw the Suit

with permission to file a fresh Suit as prayed for, instead of rejecting the

application out-rightly.

18] In view of above, interest of justice would be met if the writ

petition is allowed by imposing heavy costs as a condition precedent.

19] The writ petition is allowed subject to the condition that the

petitioners shall deposit in the trial Court costs of Rs. 25,000/- of the

respondent Nos. 1 and 2 each within four weeks. The respondent Nos. 1 and

2 would be entitled to receive the costs. On such costs being deposited the

trial Court shall allow the application (Exh. 88).

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20]              The Rule is made absolute in above terms.




                                               [MANGESH S. PATIL, J.]



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