Kailash Mahto vs Karam Chand Mahto
2023 Latest Caselaw 3724 Jhar

                                                                C.M.P. No.689 of 2023


   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               C.M.P. No.689 of 2023
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Kailash Mahto, aged about 64 years, son of late Chhotu Mahato, resident of Village Sonpura, P.O.-Sandh, P.S. Barkagaon, District Hazaribagh .... .... .... Petitioner/plaintiff

Versus

Karam Chand Mahto, son of late Jhari Mahato, resident of Village Sonpura, P.O.-Sandh, P.O.-Barkagaon, District-Hazaribagh .... .... ....Respondent/defendant

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PRESENT

HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioner : Mr. Pratik Sen, Advocate

For the State : Mr. Praveen Akhouri, Addl.P.P

Ms. Mohini Gupta, Adv.

Md. Sharabil Ahmed, Adv.

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CAV On 27/09/2023 Pronounced On 05 / 10 /2023

1. Present petition under article 227 of Constitution of India has been preferred against the order dated 07.02.2023 passed by learned Civil Judge (Sr. Division)-VII, Hazaribagh in partition suit No.33 of 2015 (hereinafter called as impugned order) whereby and whereunder the learned civil judge has dismissed the application of petitioner dated 10.08.2022 under order VI rule 17 read with section 151 of CPC for adding some co-sharers as necessary parties to the suit only on account of substantial delay in filing the application, which is likely to change the nature of suit.

2. The plaintiff/petitioner has instituted a suit for partition of joint family property mentioned in scheduled-B of the plaint against the original defendants.

The defendants appeared and filed their written statement stating inter alia that the common ancestors Ganesh Mahato died

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leaving behind two sons Chattu Mahhto and Jhari Mahto and five daughters namely Ketri, Bandhani, Jitni, Ugni and Sugni, who are necessary parties to the suit. It is also pointed that Chattu Mahto died leaving behind a son namely Kailash Mahto and four daughters namely Runia, Jhunia, Etawaria and Urmila, who are also co-sharers and necessary parties of the suit.

3. The suit was pending for plaintiff's evidence, meanwhile an application under order VI rule 17 read with Section 151 of CPC dated 10.08.2022 was filed by the plaintiff to implead the above legal representatives and co-sharers of the suit scheduled property as defendants.

4. The defendants have opposed the above prayer by filing the rejoinder on the ground that they have filed written statement on 21.09.2015 disclosing the name of above necessary parties but the plaintiff with a view to cause delay in disposal of the suit has deliberately not taken any steps since long gap of six years. Hence prayer of plaintiff is fit to be rejected.

5. The learned counsel for the petitioner has submitted that in a partition suit, all heirs and co-sharers are necessary parties, without whose presence and joining in the case, no effective judgment can be passed. As per provision of order 1, Rule 10(2) of CPC the necessary parties can be impleaded at any stage of the proceedings and there is no time limit. The learned court below has committed serious illegality while passing the impugned order which is fit to be set aside.

6. Per contra:- Learned counsel for the respondents has vehemently opposed the aforesaid contentions raised on behalf of the petitioner and submitted that it is only delaying tactics adopted by petitioner and the petition is devoid of merits and fit to be dismissed.

7. It appears that though the application under order 6 rule 17 read with section 151 of CPC was filed instead of order 1 rule 10(2) of CPC and the plaintiff/petitioner has sought following amendments:-

(1) That in cause title of the instant suit in the category of defendants after the name and address of the defendant No.1 Karam Chand the following persons be added:-

1. Rohan Mahto

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2. Dineshwar Mahto

3. Parwatia Devi

All sons and daughter of Runiya Devi and Lakpat Mahto all residents of village Mahudi P.O. Sandh, P.S-Barkagaon, Hazaribagh.

4. Jhuniya Devi wife of late Ruplal Mahto R.O village Singhani, P.S. Pathalgarah, District-Chatra

5. Dwarka Mahto S/o of late Etwari Devi and Shiba Mahto, village-Mahudi, P.S. Barkagaon, District-Hazaribagh

6. Karmi Devi, D/o Late Etwari Devi and Shiva Mahto, resident of village-Mirzapur, P.O.-Sandh, Barkagaon, Hazaribagh

7. Sukri Devi, D/o Chhathu Mahto wife of Mahabir Mahto R/o village Singhani, P.O. Pathargadda, Chatra

8. Urmila Devi, D/o late Chhattu Mahto wife of Krishna Mahto R.O village Sandh, P.O. Sandh, P.S. Barkagaon, District-Hazaribagh.

8. It appears that the learned court below was misdirected by the provision mentioned in the application of the plaintiff as order 6 Rule 17 instead of order 1 rule 10 (2) of the Code of Civil Procedure and rejected the application on ground of delay as well as it will change the nature of suit while it appears from the application dated 10.08.2022 that the plaintiffs actually wanted to add the party defendants in the suit which required to be file under the provision of order 1 rule 10(2) of CPC.

The Hon'ble Apex Court in the case of Pruthvirajsinh Nodhubha Jadeja V. Jayeshkumar Chhakaddas Shan reported in (2019) 9 SCC 533 held in para 8 as under:-

"8. It is well-settled law that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court."

9. It is here pertinent to extract the relevant provision of the order 1 rule 10(2) of CPC

"10 (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

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the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit."

10. In a partition suit all the co-sharers are necessary parties, who may be joined in such suit at any stage of proceedings. The question of change of nature of suit does not arise at all. It is also true that non- joinder of all the co-sharers in a partition suit is fatal to the case.

11. In view of aforesaid discussion and reasons, I find that the learned court below has failed to properly appreciate the consequences of non-impleading the proposed co-sharers as parties in the suit and swayed towards interpretation of order 6 rule 17 of CPC, which is not applicable for impleadment of parties to the suit and arrived at wrong conclusion.

12. In view of aforesaid discussion and reasons, the impugned order is hereby set aside and this petition is allowed. The proposed defendants are directed to be impleaded in the suit and file their respective written statements, if so advised and the learned court below shall proceed with the trial of the case in accordance with law.

(Pradeep Kumar Srivastava, J.) Pappu/