Chattisgarh High Court
Ku. Durgesh Nandani vs Neelam Sharma on 30 July, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally
signed by
FA(MAT) No. 25 of 2019
RAMAKANT
NIRALA
Order reserved on : 18.06.2025
Order delivered on : 30.07.2025
1 - Ku. Durgesh Nandani D/o Brajmohan Duwa Aged About 44 Years R/o Link
Road Infront Of Bukhari Petrol Pump Bilaspur Chhattisgarh, District :
Bilaspur, Chhattisgarh
2 - Smt Santoshi Jangde D/o Brajmohan Duwa Aged About 38 Years W/o
Venkat Ramn R/o Village Chhatandanapur, Post And Tahsil Mungeli, District
Mungeli Chhattisgarh, District : Mungeli, Chhattisgarh
3 - (Deleted) Smt. Chandrakali As Per The Hon'ble Court Order Dated 20-06-
2022.
Appellants
versus
1 - Neelam Sharma, Daughter Of Late Brijmohan Dua And Wife Of Shri
Rajendra Sharma, Aged About 42 Years Resident Of Gondpara, Beside
Agrawal Saw Mill, Bilaspur, District - Bilaspur, Chhattisgarh. (As Per Hon'ble
Court Order Dated. 06/05/2023 And 14/08/2023).
Respondent(s)
For Appellants : Mr. B. P. Sharma, Mr. M. L. Sakat and Mr.
R. N. Singh, Advocates
For Respondent No.1 : Mr. H. V. Sharma, Advocate
For Applicant Krishna Duwa : Mr. Sandeep Jha and Ms. Gunjan Tiwari,
Advocates
Hon'ble Smt. Justice Rajani Dubey
Hon'ble Shri Justice Amitendra Kishore Prasad
CAV Order
Per Rajani Dubey J.
1. Heard on IA No.13/2023, application under Order 1 Rule 10 of CPC
dated 05.06.2023.
2. By this order, the application filed by the applicant/sister of the
respondent namely Krishna Duwa is being decided.
3. The applicant Krishna Duwa has filed this application on the ground
that the appellants have filed the present appeal against the judgment
and decree dated 29.07.2019 passed by the learned Family Court,
Bilaspur in Civil Suit No.331-A/2019, whereby the learned Family Court
dismissed the suit filed by the appellants seeking declaration of
paternity. Thereafter the appellants filed the present appeal before this
Court, which is pending for adjudication before this Court, but the
respondent, who was unmarried, died on 28.09.2022 itself and the
applicant being the sole legal heir of the respondent should be
substituted as party respondent for proper adjudication of the case.
She further stated that the respondent Brijmohan Duwa had one
brother namely Omprakash Duwa and one sister i.e. the applicant
herself, but the said Omprakash Duwa also died, which is evident from
Document-D/1, therefore, the applicant remained the sole legal heir of
the respondent and she should be substituted as party respondent.
She has also filed affidavit in support of the application. In other cases,
she has already been substituted as legal heirs of Brajmohan Duwa
before this Court and the Hon'ble Apex Court as well. Therefore, the
present application may be allowed.
4. Learned counsel for the appellants strongly opposes the prayer of the
applicant and submits that the application filed by the applicant under
Order 22 Rule 4 of CPC has already been dismissed by this Court vide
order dated 06.05.2023 being IA Nos.10, 11 & 12 of 2023, as such the
present application filed by the applicant is not maintainable and is
liable to be dismissed.
5. Heard learned counsel for the parties and perused the material
available on record.
6. The present appeal is filed by the appellants against the impugned
judgment and decree dated 29.07.2019 passed by the learned Family
Court, Bilaspur in Civil Suit No.331-A/2019, whereby the suit filed by
the appellants/plaintiffs against the defendant Brajmohan Duwa was
dismissed seeking declaration of paternity. During pendency of this
appeal, Brajmohan Duwa died and sister of Brajmohan Duwa filed
various applications bearing IA No.10/2023 dated 20.03.2023 under
Order 22 Rule 4 of CPC read with Section 151 of CPC, IA No.11/2023
dated 11.04.2023 under Order 22 Rule 4 of CPC read with Section 151
of CPC and IA No.12/2023 dated 14.04.2023 for substitution of the
name of legal heirs of the respondent Brajmohan Dwua.
7. This Court dismissed the application filed by the applicant vide order
06.05.2023, the operative part of this order is as under:-
"............................................................................
Heard on applications I.A. No.10, I.A. No.11 and I.A. No.12
which are applications filed by Krishna Duwa claiming
herself to be the sister and representing the estate of the
deceased Brajmohan Duwa.
Application has been filed under Order 22 Rule 4 of CPC.
Application of the like nature cannot be entertained in this
case by way of Order 22 Rule 4 CPC which deals with
specific provisions to bring legal heir. Therefore,
applications I.A. No.10, I.A. No.11 and I.A. No.12 being
devoid of merit and substance, are dismissed.
The applicant Krishna Duwa however shall be at liberty to
move suitable application, if so advised."
8. Now the applicant Krishna Duwa has filed this application under Order
1 Rule 10 of CPC.
9. Learned counsel for the applicant has argued that the appellants had
filed suit before the learned Trial Court for declaration of paternity and
the learned Trial Court dismissed the suit filed by the appellants on this
ground that plaintiff No.3 Chandrakali was married to another person in
the year 1960 and the plaintiffs Nos.1 & 2 were born during this
marriage, as such they are not entitled for any declaration of paternity,
as they are not the daughters of Brajmohan Duwa as per Section 112
of the Evidence Act.
10. The appellants/plaintiffs have filed this appeal against the impugned
judgment and decree passed by the learned Trial Court and during
pendency of this appeal, the respondent Brajmohan Duwa died. Now
Krishna Dua, who is the sister of Brajmohan Duwa, has filed this
application (IA No.11/2023). The applicant Krishna Dua has also filed
copies of several cases which are pending before this Court and other
Courts as well.
11. As per Krishna Dua, she is the sole legal heir of late Brajmohan Duwa
and in many cases, she is representing as deceased Brajmohan Dua's
legal heir before this Court and as well as the Hon'ble Apex Court. In
one of the case i.e. MCC No.548/2019, Krishna Dua is substituted as
legal heir of Brajmohan Dua, which is pending before this Court. In
CRR No.725/2014 also, which is pending before this Court, Krishna
Dua is substituted as legal heir of Brajmohan Duwa. She has also filed
copy of order dated 05.12.2024 passed in Civil Appeal (S) No.5626-
5627/2024 by the Hon'ble Apex Court, in which application of Krishna
Dua was allowed and she was added as legal heir of Brajmohan Dua.
12. Learned counsel for the applicant has argued that this litigation is not a
simplictor litigation and many disputes/questions related to property are
involved and this Court has already reserved liberty in favour of
applicant to move suitable application, if so advised and since she is a
necessary party in this appeal and without adding her as party
respondent, she cannot present her case.
13. It is clear from the impugned judgment and decree that the learned
Trial Court dismissed the suit of the plaintiffs/appellants seeking
declaration of paternity against the respondent, against which the
appellants have filed the present appeal against the respondent
Brajmohan Dua, who has died.
14. Order 1 Rule 10 of CPC provides as under:-
10. Suit in name of wrong plaintiff-- (1) Where a suit has
been instituted in the name of the wrong person as plaintiff
or where it is doubtful whether it has been instituted in the
name of the right plaintiff, the Court may at any stage of
the suit, if satisfied that the suit has been instituted thought
a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order
any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2) Court may stirke out or add parties.--The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may
appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant,
be struck out, and that the name, of any person who ought
to have been joined, whether as plaintiff or defendant, or
whose presence before the Court may be necessary in
order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in the
suit, be added."
15. The Hon'ble Apex Court in the matter of Anil Kumar Singh vs
Shivnath Mishra and Gadasa Guru, reported in (1995) 3 SCC 147,
held in paras 9 & 10 as under:-
"9. Sub-rule (2) of Rule 10 of Order 1 says that "necessary
parties are persons who ought to have been joined as a
party to the suit, a necessity to the constitution of the proper
suit without whom no relief or order can be passed". In
order that a person may be considered a necessary party,
defendant to the suit, the conditions precedent must be (1)
that there must be a right to some relief against him in
respect of the dispute involved in the suit; and (2) that his
presence should be necessary to enable the court to
effectually and completely to adjudicate upon and settle all
the questions involved in the suit. Since the respondent is
not a party to the agreement of sale, it cannot be said that
without her presence the dispute as to specific performance
cannot be determined. Therefore, she is not a necessary
party.
10. A person may be added as a party defendant to the suit
though no relief may be claimed against him/her provided
his/her presence is necessary for a complete and final
decision on the question involved in the suit. Such a person
is only a proper party as distinguished from a necessary
party. In Razia Begum v. Sahebzadi Anwar Begum & Ors. ,
1959 SCR 111, in a suit instituted for a declaration of legal
status as a married wife, the question arose whether
another person claiming to be the third wife and sons
through her are necessary and proper party, who sought to
come on record under Order 1 Rule 10(2). This Court held
that in a suit for declaration, as regards status or legal
character under s.42 of the Specific Relief Act, the rule that
in order that a person may be added as a party must have a
present or direct interest in the subject matter of the suit, is
not wholly applicable, and the rule may be relaxed in a
suitable case where the court is of the opinion that by
adding that party it would be in a better position to
effectually and completely to adjudicate upon the
controversy. In such suits the court is not bound to grant the
declaration prayed for, on a mere admission of the claim by
the defendant, if the court has reasons to insist upon clear
proof, apart from the admission. It was therefore, held that a
declaratory judgment since binds not only the parties
actually before the court but also the persons claiming
through them respectively within the meaning of S.43 of the
Specific Relief Act, they are proper parties......................"
16. In view of the above legal proposition and considering the facts and
circumstances of the case as well as the material available on record
including the copies of cases filed by the applicant, it is clear that
Krishna Dua is substituted in various cases as a legal heir of the
respondent Brajmohan Duwa, who has already died, as such without
adding her in the present case as a party respondent, she cannot
protect the interest of Brajmohan Dua, as according to her, she is the
legal heir of the respondent Brajmohan Dua. Inasmuch as, Neelam
Sharma has already been added as respondent No.1 in the present
appeal.
17. Consequently, without going into merits of the case, the application (IA
No.13/2023) is allowed and the applicant Krishna Duwa be added as
party respondent No.2 in the appeal.
18. The appellant is directed to amend the cause title of this appeal within
10 days from today.
19. The respondent No.2 Krishna Dua is also directed to file reply of any
pending applications, if she so desires.
20. List this case for further hearing.
Sd/- Sd/-
Rajani Dubey Amitendra Kishore Prasad
Judge Judge
Nirala
