Most. Indira Choudhary vs Abinash Prakash Choudhary
2025 Latest Caselaw 1798 Jhar

Jharkhand High Court

Most. Indira Choudhary vs Abinash Prakash Choudhary on 17 January, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

IN    THE HIGH COURT OF JHARKHAND AT RANCHI
                    C.M.P. No. 735 of 2024
1. Most. Indira Choudhary, aged about 85 years,
Widow of Late Hari Krishna Choudhary,
2. Ajit Kumar Choudhary, aged about 66 years,
3. Sanjay Kumar Choudhary, aged about 62 years,
4. Aseem Kumar Choudhary, aged about 56 years,
5. Vishal Kumar Choudhary, aged about 53 years,
6. Anshuman Kiran Choudhary, aged about 45 years,
      Sl. No. 2 to 6 are sons of Late Hari Krishna
Choudhary, Sl. No. 2 Resident of New Drug INN,
Circular Road, Lalpur, P.O & P.S.-Lalpur, Dist.-
Ranchi.
      Sl. No. 1 & 3 to 6 are resident of Drug INN,
H.B. Road, P.O. & P.S.-Lalpur, Dist.-Ranchi.
7. Miss Anima Choudhary, aged about 60 years,
Daughter of Late Hari Krishna Choudhary, Resident
of Drug INN, H.B. Road, P.O. & P.S.- Lalpur, Dist.-
Ranchi.
8. Smt. Smita Choudhary, aged about 50 years, Wife
of Sri Sumit Chaurasia, Resident of Rashmi Enclave,
C/o Sri Ashim Choudhary, Booty Road, P.O. & P.S.-
Bariatu, Dist.-Ranchi.
                                              ..... ...   Petitioners
                            Versus
1. Abinash Prakash Choudhary, Son of Late Bachhu
Lal Chaurasia, Resident of Near Lalpur Thana,
Hazaribag Road, P.O. & P.S.-Lalpur, Dist.- Ranchi.
2. Smt. Neelima Chaudhary, Wife of Sri Shiv
Shankar, Resident of Block 15, Sector 18, Raurkela-3,
P.O. and P.S.-Sundargarh, Dist. Sundargarh (Orissa).
3. Smt. Nirja Chaudhary, wife of Dr. H.H. Nag C/o
Dr. H.H. Nag, Resident of G.P. Panth Hospital,
Jawaharlal Nehru Marg, P.O.+P.S.-Nehru Place,
Delhi.
4. Sri Krishna Chaudhary son of Late Rameshwar
Prasad Chaudhary, Resident of Sai Marbles, H.B.
Road, Lalpur, P.O. & P.S.-Lalpur, Dist.- Ranchi.
5. Most. Kalpana Bala Chaudhary Widow of Late
Jyoti Krishna Chaudhary, Resident of Drug Inn, H.B.
Road, P.O. & P.S. Lalpur, District- Ranchi.
6. Smt. Dibya Chaudhary wife of Sri Sandeep Kumar
C/o Sri Mankeshwar Prasad, Resident of Village-
Khapatola, P.O.+P.S.-Nawatan, District- West
Champaran.
7. Smt. Khushbu Chaudhary, wife of Prabhat Kumar,
C/o Prabhat Kumar, Resident of Kirari, Jhuleman
                             -1-
 Nagar, Karawan, P.O. & P.S. Chchatarpur, New Delhi,
Pin-110074.
8. Samir Kumar Chaudhary son of Late Jyoti Krishna
Chaudhary, Resident of Drug Inn, H.B. Road, Lalpur,
P.O. & P.S. Lalpur, Dist. Ranchi.
9. Vijay Krishna Chaudhary son of Late Rameshwar
Prasad Chaudhary, Resident of Drug-Inn, H.B.Road
Lalpur, P.O. & P.S. Lalpur, Dist.- Ranchi.
10. Most. Shakuntala Chaurasia Widow of Late
Jogendra Prasad Chaurasia.
11. Sanjeev Chaurasia
12. Sandeep Chaurasia
      No. 11 and 12 are sons of Late Jogendra Prasad
Chaurasia, 10 to 12 are the resident of Near High
Secondary School, Main Road, Bhandarijee,
Chaurasia Market, P.O. and P.S.-Giridih, District-
Giridih, Pin-815301.
13. Smt. Sandhya Chaurasia
14. Smt. Shradha Chaurasia
      No. 13 and 14 are daughters of Late Jogendra
Prasad Chaurasia, resident of C/o Sanjeev Chaurasia,
Near High Secondary School, Main Road,
Bhandarijee Chaurasia Market, P.O. and P.S.-Giridih,
District-Giridih, Pin-825301.
15. Norendra Prasad Sao
16. Fanendra Prasad Sao
17. Satendra Prasad Sao
             No. 15 to 17 are sons of Late Hari Prasad
Sao, No. 15, resident of Rajganj, P.O. and P.S.-
Rajganj, District-Dhanbad, Pin-828113 and No. 16
and 17 are the resident of Near High Secondary
School, Main Road, Bhandarijee, Chaurasia Market,
P.O. and P.S.-Giridih, District-Giridih, Pin-815301.
18. Most. Punam Sao, widow of Late Surendra Prasad
Sao
19. Smt. Doli Sao
20. Smt. Poli Sao
21. Smt. Shaili Sao
      No. 19 to 21 are daughters of Late Surendra
Prasad Sao, No. 18 to 21 are the resident of C/o
Sanjeev Chaurasia, Near High Secondary School,
Main Road, Bhandarijee Chaurasia Market, P.O. and
P.S.-Giridih, District-Giridih, Pin-815301.
22. Most. Tara Sao, widow of Late Mahendra Prasad
Sao
23. Sumit Sao, son of Late Mahendra Prasad Sao
      No. 22 and 23 are resident of Rajganj, P.O. and
P.S.-Rajganj, District-Dhanbad, Pin-828113.

                               -2-
 24. Sambhu Prasad Sao son of Late Sahadeo Prasad
resident of Rajganj, P.O. & P.S. Rajganj, Dist.
Dhanbad, Dist. Dhanbad, Pin- 828113.
25. Smt. Chinta Devi wife of Sri Kanhaiya Lal,
resident of C/o Kanhaiya Lal, Bekaar Bandh, P.O. &
P.S. Jharia, Dist.- Dhanbad, Pin-828113.
26. Smt. Uma Devi Wife of Sri Durga Prasad, resident
of C/o Sri Durga Prasad, 2/B, Poket- 3. Fesh-1, Mayur
Bihar, P.O. and P.S.-Mayur Bihar, Delhi, Pin-110091.
27. Smt. Babita Chaurasia wife of Sri Shankar
Chaurasia, resident of Kedar Nath Sen Lane, P.S. and
P.O.-Purulia Mochipara, Purulia (W.B.) Pin- 723101.
28. Smt. Anita Chaurasia wife of Sri Sanjay
Chaurasia, resident of C/o Sri Ashok Chaurasia, Tari
Mohalla, Khara Kaun, Arrah, Bhojpur, P.O. and P.S.-
Arrah, Bhojpur (Bihar).
29. Smt. Sunita Chaurasia wife of Sri Kamal
Chaurasia, resident of C/o Kamal Chaurasia, Kamal-
Niwas, Badi Bazar, Chaibasa, P.O. and P.S.-Chaibasa
(Jharkhand).
30. Smt. Dimpal Chaurasia wife of Sri Sanjay
Chaurasia, resident of C/o Shiv Narayan Prasad,
Khajekala, Ghat Road, Patna City, P.O. and P.S.-
Patana City, Patna, Pin- 800008.
31. Smt. Radha Chaurasia wife of Sri Sanjay Kumar
Chaurasia, resident of C/o Sanjay Kumar Chaurasia,
P.O. & P.S. Noor Saraj, Dist.-Nalanda (Bihar) Pin-
803113.
32. Smt. Kamlesh Barai wife of Sri Pappu Chaurasia,
resident of C/o Sri Tarak Nath Barai, Fruit Merchant
B.B. Das Road Purulia, P.O. and P.S.-Purulia (W.B.)
Pin- 723101.
33. Smt. Vinita Barai wife of Sri Praveen Sharma
resident of C/o Sri P.N. Vishwakarma, Arahiant
Apartment, 1st Floor, Flat No. 1/D, H.B. Road,
Deepatoli, Thana Sadar, P.O. and P.S.-Sadar, Dist.
Ranchi, Pin- 834001.
34. Bajrang Chaurasia son of Sri Tarak Nath Barai,
R/o Fruit Merchant, B.B. das Road, Purulia, P.O. and
P.S.-Purulia (W.B.) Pin-723101.
35. Arbind Kumar Basai son of Sri Tarak Nath Barai,
resident of Fruit Merchant, B.B. Das Road, Purulia,
P.O. and P.S.-Purulia, (W.B.) Pin-723101.
36. Mrs. Purnima Chaurasia wife of Sri Basudeo
Chaurasia, resident of Kedar Nath Sen Lane,
Morchipara, Purulia, P.O. and P.S.-Purulia (W.B.) Pin-
723101.
37. Mrs. Asha Chourasia wife of Sri Ashok Chaurasia,

                               -3-
 resident of Telkol Para, Sitaram Marwari Lane,
Purulia, P.O. and P.S.-Purulia (W.B.) Pin-723101.
38. Mrs. Sobha Devi wife of Sri Nawal Kishore
Chaurasia P.O. & P.S. Basia, Dist. Gumla, Pin-
835229.
39. Mrs. Usha Chaudhary wife of Sri Gopi Chand
Chaurasia, P.O. & P.S. Makluskiganj Dist.-Ranchi,
Pin- 829208.
40. Smt. Bhanu Chaurasia wife of Late Manik Lal
Chaurasia resident of G.T. Road, Asansol, P.O. and
P.S.-Asansol (W.B.).
41. Smt. Sarita Chaudhary wife of Sri S.P. Chaurasia,
resident of Opposite Bus Stand, Opposite Bus Barahi,
P.O. and P.S.-Koderma, Dist. Kodarma.
42. Most. Mridula Chaudhary widow of Late Abhitab
Chaudhary, resident of Bada Bazar, Badaka Gaon,
P.O. and P.S.-Hazaribagh, Pin-825301.
43. Mayank Chaudhary son of Late Abhitab
Chaudhary minor represented through his mother
Most. Mridula Chaudhary, No. 43 & 44, resident of
Bada Bazar, Badaka Gaon, P.O. and P.S.-Hazaribagh,
Hazaribagh, Pin- 825301.
44. Rajesh Chaudhary son of Sri Baraj Mohan,
resident of Bada bazar, Badaka Gaon, Hazaribagh,
P.O. and P.S.-Hazaribagh, Pin-825301.
45. Smt. Pinki Chaudhary wife of Sri Saurabh Kumar,
resident of Bhabha Road, Chuna Bhatha, Kokar
Ranchi, P.O. and P.S.-Kokar, Pin- 834001.
46. Smt. Namita Chaudhary wife of Sri Jogendra
Gope, resident of C/o Jogendra Gope (Jogi) Vishal
Birth, Barda Bazar, Goaar Toli Chowk Hazaribag,
P.O. and P.S.-Hazaribag, Pin-825301.
47. Smt. Binita Chourasia wife of Vijay Chaurasia,
resident of Loha Singh Marg near I.T.I. Ranchi, P.O.
and P.S.-ITI Ranchi, Pin-834001.
48. Smt. Indu Chaudhary widow of Late Braj Kishore
Chaudhary, resident of C/o Prasoon Chaudhary, Dhan
Lakshmi Cinema Road, Hazipur, P.S.and P.O.
Hazipur, Dist.- Vaishali.
49. Prasant Modi son of Late Punit Modi, resident of
A/6, Mecon Co-operative Colony, Itki Road, kathar
More, P.S and P.O. Sukhdeonagar, Dist.- Ranchi, Pin-
834001.
                                                ..... ...      Respondents
                          --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

------

For the Petitioners : Mr. Niraj Kishore, Advocate.

                              :      Mrs. Shobha Rani, Advocate.
      For the Resp. No. 1    :      Mr. Shashank Shekhar, Advocate.
                             :      Mr. Karbir, Advocate.
                             ------
03/ 17.01.2025    Heard Mr. Niraj Kishore, learned counsel appearing for the

petitioners and learned counsel appearing for the respondent No. 1, who is the contesting party, being the plaintiff in the suit.

2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 11.03.2024, passed by the learned Civil Judge (Sr. Div.)-IX, Ranchi, in O.S. No. 442 of 2014 [MCA No. 1001 of 2023], whereby, the application filed under Order-I, Rule 10(2) of the CPC by the defendant Nos. 1 to 6, 9, 11 and 12 has been rejected by the said court.

3. Mr. Niraj Kishore, learned counsel appearing for the petitioners submits that the Partition Suit No. 442 of 2014 was instituted for preparation of a preliminary decree for partition. He submits that the petitioners were the defendants in the said suit and the partition suit is between the brothers and sisters and one of the brother has instituted the said partition suit. He further submits that the plaintiff, who is the respondent No. 1 has made certain arrangement with one M/s J.B. Real Estate Developers and Contractors in the shape of development agreement and in view of that the petitioners had filed a petition under Order-I, Rule-10(2) of the CPC, which was rejected. He then submits that by the impugned order dated 11.03.2024, the learned court in absence of any reason has rejected the same, in view of that the said order may kindly be set aside, as M/s J.B. Real Estate Developers and Contractors is a necessary party to decide the partition suit. He relied in the case of Baluram Versus P. Chellathangam & Ors., reported in 2015(1) JLJR (SC) 178.

4. Relying on the above judgment, he submits that in light of the above judgment, M/s J.B. Real Estate Developers and Contractors is a necessary party and the learned court has erroneously rejected the same and the learned court has not considered the same in accordance with law and in absence of any ground, the petition has been dismissed.

5. Per contra, Mr. Shashank Shekhar, learned counsel appearing for the respondent No. 1 submits that the learned court has rightly passed the said order, as M/s J.B. Real Estate Developers and

Contractors is a stranger and the learned court has rightly not allowed to add as a party, as the plaintiff is a dominus lities and cannot be forced to add a party against whom, the plaintiff has not sought for any relief. He submits that there are two principles to allow the said impleadment, as the first one is that there must be a right to some relief against such person in respect of controversy involved in the suit and second is no effective decree can be passed in absence of such party. He submits that these two principles are not fulfilling for adding the M/s J.B. Real Estate Developers and Contractors as a party, in view of that the learned court has rightly passed the said order. He relied a judgment of five Judges Bench of the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia Versus Additional Member Board of Revenue, Bihar &Anr., reported in AIR 1963 Supreme Court 786, wherein the Hon'ble Supreme Court in para-7 has held as follows:-

"7. To answer the question raised it would be convenient at the outset to ascertain who air necessary or proper parties in a proceeding. The law' on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively'; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."

6. He further relied upon a Full Bench judgment of Allahabad High Court in the case of The Benares Bank Ltd., Benares Versus Bhagwan Das & Ors., reported in AIR (34) 1947 Allahabad 18, where in para-8, it has been held as follows:-

"8. A preliminary objection has been taken to the hearing of this appeal upon the ground that the appeal was incompetent inasmuch as the creditors, whom the appellant omitted to implead in the appeal, were necessary parties and that without the presence, of the said creditors before the court, no effective decree could be passed in the appeal. The decision of this objection would depend upon the answer

to the question as to whether the creditors omitted from the memorandum of appeal were necessary parties. Who is 'a necessary party' has not been defined in the Code of Civil Procedure. But as a result of decided cases it may be laid down that there are two tests by which this question must be determined. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly, it should not be possible to pass an effective decree in the absence of such a party. Applying these tests, I have no doubt that the creditors of a landlord who has claimed relief under the Encumbered Estates Act are necessary parties to the proceedings under that Act. The object of the Act is (1) to compel the landlord to surrender his entire property for the benefit of his creditors and (2) to liquidate the debts of all the creditors of such a landlord in accordance with, and to the extent permitted by, the Act. It is true that the landlord is also a party to the dispute raised by a claim under Section 11. But it is obvious that the main party who is vitally interested in that dispute is the entire body of creditors. The issue which arises out of such a claim is whether the property, which is the subject-matter of the claim, is liable to be availed of in accordance with the provisions of the Act for the satisfaction of the debts due to the entire body of creditors. Could it be suggested that in a suit under Order XXI, Rule 63, Code of Civil Procedure, the decree-holders who desire to seize the property belonging to the judgment-debtor are not necessary parties? The mere fact that the judgment-debtor is also impleaded in such a suit does not affect the question that the real dispute is between the claimant to the property, which is the subject-matter of the suit, and the decree-

holder. It has been argued that the creditors are really no parties to the claim under Section 11 as there is no express provision in the Act for issue of notice of such a claim. I have given my anxious consideration to this argument but. I find myself unable to accept the same perusal of Section 9 of the Act would show that, in addition to the publication of notice in the gazette, and otherwise calling upon the creditors to present written statements of their claims, it is necessary that such notice should be issued to each of the creditors mentioned, in the written statement of the landlord. In my opinion, the creditors become parties to the proceedings under the Act after the notices are served upon them and, in any event, after they have filed the written statements of their claims. They continue to be parties to the proceedings until their debts are liquidated or proceedings are terminated in accordance with the provisions of the Act. It is worthy of note that this court has treated the creditors and the landlord on the same footing as if they were parties to a suit and in cases where the heirs of a deceased creditor have not been substituted, this Court has declared that the application under Section 4 of the Encumbered Estates Act abated as against the legal representatives of such deceased creditor. It is true that in general, the proceedings under the Encumbered Estates Act are in the nature of proceedings for the administration of debts under the Companies Acts or the Bankruptcy Acts. But the Legislature has not thought fit to assimilate the Encumbered Estates Act proceedings in all essential particulars to the proceedings under those Acts. No provision has been made in the Encumbered Estates Act for the representation of the creditors by another person and I am constrained to hold that

in the proceedings under the Encumbered Estates Act, the creditors are parties not as beneficiaries, represented by some trustee but in their individual capacity. In my judgment, the omission in Section 11 of the provision for the issue of notice to the creditors and the landlords does not affect the matter. If from the nature of the case, the creditors are necessary parties to the proceeding in question, the Court is bound to issue notice to such parties under the ordinary law of procedure."

7. Relying on above two judgments, he submits that the learned court has rightly rejected the said petition and there is no illegality in the said impugned order, in view of that this writ petition may kindly be dismissed.

8. It is an admitted position that the partition suit was instituted by the respondent No. 1 and that partition suit is between the brothers and sisters. Certain arrangements have been made by the plaintiff with M/s J.B. Real Estate Developers and Contractors, thus, that firm is a stranger to the property, as it is a partition suit between the brothers, sisters and other family members.

9. In view of the above, the learned court has rightly said that no one can pass better title than one he has.

10. So far as the judgment relied by Mr. Niraj Kishore, learned counsel appearing for the petitioners in the case of Baluram (Supra) is concerned, in that case, the learned trial court has allowed the Order-I, Rule-10 of the CPC petition, which was reversed by the High Court and further the Hon'ble Supreme Court has reversed the order of the High Court considering that the person was a beneficiary of the trust and the allegations are there that the sale was effected at a throw away price, thus, in that case, there was direct impact, in view of that the Hon'ble Supreme Court has passed the said order.

11. What has been discussed hereinabove so far as the facts of the present case is concerned is otherwise. M/s J.B. Real Estate Developers and Contractors is a stranger to the partition suit and he has got no right, title and interest in the property and it is also clear that in absence of him, decree can be passed.

12. In light of the above, the judgments relied by the learned counsel appearing for the respondent No. 1 is helping the respondent No. 1.

13. In the case of Mumbai International Airport Private Limited Versus Regency Convention Centre & Hotels Private Limited & Ors., reported in (2010) 7 SCC 417, this aspect of the matter has been considered in paras-13 and 15, which reads as under:-

"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

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

15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper

party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."

14. The above judgment is further supporting the order of the learned court and in the given situation, the M/s J.B. Real Estate Developers and Contractors is not a necessary party, as he is not a person, against whom, the decree is to be made. As such, there is no illegality in the impugned order, as such, this petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]