Jharkhand High Court
Meena Devi Kuntia vs Shyamal Kumar Bhattacharya & ... on 15 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 144 of 2020
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Meena Devi Kuntia ... Appellant
-versus-
Shyamal Kumar Bhattacharya & Others ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellant : Mr. Indrajit Sinha, Advocate
For the Respondents : None
For the State : Mr. Sachin Kumar, A.A.G.
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11/ 15.09.2021 I.A. No.3102 of 2021
Mr. Sachin Kumar, learned Additional Advocate General, submits
that he has instructions not to press this interlocutory application, i.e., I.A.
No.3102 of 2021 filed under Order 1 Rule 10 of the Code of Civil Procedure,
where prayer has been made to implead the State as Respondent.
2. The present interlocutory application (I.A. No.3102 of 2021) has
been filed under Order 1 Rule 10 of the Code of Civil Procedure, praying
therein to implead State as a party. The suit being Title (P) Suit No.95 of 2019,
pending before the Civil Judge Senior Division I, Jamshedpur is a partition suit.
The State is, admittedly, not a party to the partition suit. The plaintiff has
sought partition of the scheduled property and is claiming 1/5th share over the
same. The State is not a party neither any relief has been sought for against
the State. In the aforesaid partition suit, an application under Order XXXIX
Rule 1 and 2 of the Code of Criminal Procedure was filed by the plaintiffs,
which got dismissed. Aggrieved by the said dismissal, this appeal has been
filed by the plaintiffs by invoking provisions of Order XLIII Rule 1(r) of the Code
of Civil Procedure. Thus, the scope of this miscellaneous appeal filed under
Order XLIII Rule 1(r) of the Code of Civil Procedure is very limited, which is
confined only to the impugned order to see whether on facts and law the
plaintiffs are entitled for injunction or not.
3. Order 1 Rule 10(2) of the Code of Civil Procedure provides for
adding or striking out a party. It is necessary to quote Order 1 Rule 10(2) of the
Code of Civil Procedure, which reads as under:-
(2) Court may strike 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.
3. From perusal of the aforesaid provision, it is clear that if a party is
improperly joined, can be ordered to be struck of either upon a petition or suo
moto by the Court. Similarly, name of any person ought to have been joined,
whose presence before the Court is necessary in order to enable the Court
effectually and completely adjudicate upon and settle all the questions
involved in the suit may be added upon a petition or suo moto by the Court.
Thus, primary consideration is whether the person, who seeks to join, is a
proper party and in order to enable the Court to completely adjudicate the suit
his presence is necessary or not.
4. As held, the instant suit is a simple partition suit between some
private individuals where the State has got no role. It is not a case of
declaration of right, title over any land. Further, the State has not been made a
party and in a partition suit involving private persons, even if the land is a
leasehold property, leased out by the State, State cannot be said to be a
proper and necessary party. Presence of the State is also not necessary to
adjudicate or settle the questions involved in the partition suit. Further, in any
event, in a partition suit, where the shares of litigating persons are carved out,
the final judgment is not binding upon the State where the State is not a
necessary party, nor the right of the State is affected. Be it noted that none of
the parties to the suit is claiming paramount title over the land in question as
the suit is only for partition.
5. Considering the aforesaid provision of law, since State is not a
necessary party for adjudication of the issues before the Trial Court or before
this Court, this interlocutory application is allowed to be withdrawn. This
interlocutory application is, accordingly, dismissed as withdrawn.
M.A. No. 144 of 2020
6. Defect No.2 has been cured. So far as defect No.9 is concerned,
the same is ignored for the present. So far as defect No.7 is concerned,
counsel for the appellant shall get the same removed by making necessary
correction in the memo within two weeks.
7. Issue notice to respondents No.1 to 5 by registered post with A/D.
as also through ordinary process for which requisites etc. must be filed within
two weeks, failing which this appeal, as against the said respondents, shall
stand rejected without any further reference to the Bench.
8. List this case after service of notice.
9. The plaintiff-appellant will be at liberty to cause personal service
of notice to the respondents since the partition suit is already pending before
the Civil Judge Senior Division I at Jamshedpur.
10. Mr. Indrajit Sinha, learned counsel appearing for the appellant, at
this stage, submits that construction of multi-storied building has more or less
been completed, thus, there is apprehension that the respondents will create
third party interest, which will complicate the issues and will unnecessary
attract several persons into the litigation. He prays for an interim order from
this Court.
11. Considering the aforesaid submission, it is made clear that, till
further order, the respondents will not create any third party interest over the
property, which is the subject matter of Title (P) Suit No.95 of 2019. It is made
clear that since this interim order is passed exparte, awaiting appearance of
the Respondents, Respondents will be at liberty to file an appropriate
application praying for vacation/ modification of this interim order, once they
appear in this appeal.
12. Let a copy of this order be communicated to the Court of the Civil
Judge Senior Division I at Jamshedpur.
(Ananda Sen, J.)
Kumar/Cp-02
