Madhya Pradesh High Court
Smt. Meera Devi vs Subhash Chand Chandil on 6 December, 2023
Author: Anand Pathak
Bench: Anand Pathak
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 6th OF DECEMBER, 2023
MISC. PETITION No. 1592 of 2018
BETWEEN:-
1. SMT. MEERA DEVI D/O LATE SHRI
BHOGIRAM, W/O- SHRI RAMESH
CHANDRA CHANDIL, AGED ABOUT
52 YEARS, R/O- NEAR WAREHOUSE
ROAD, MORENA AT PRESENT
MEERA NAGAR BARADARI
CHAURAHA, GWALIOR (MADHYA
PRADESH)
2. SMT. INDRA D/O LT SHRI
BHOGIRAM NEAR WAREHOUSE
MORENA PRESENT NEAR GANESH
MANDIR NURABAD DISTT
MORENA (MADHYA PRADESH)
3. SMT. RAMA DEVI D/O LT SHIR
BHOGIRAM R/O- NEAR
WAREHOUSE MORENA PRESENT
100 FEET ROAD KALINDI VIHAR
MAYAPURI COLONY AGRA
(UTTAR PRADESH)
.....PETITIONERS
(BY SHRI P.C. CHANDIL - ADVOCATE)
AND
1. SUBHASH CHAND CHANDIL S/O
LATE SHRI CHATELAL MANDIL,
AGED ABOUT 56 YEARS, R/O-
WAREHOUSE ROAD, MORENA
(MADHYA PRADESH)
2. RAMSWAROOP MANDIL S/O LT
SHRI BHOGIRAM, AGED ABOUT 67
YEARS, R/O- CENTRAL
WAREHOUSE ROAD NEAR BALAJI
PLYWOOD MORENA AND VIJAY
NAGAR COLONY NEAR VIVEK
PRAKASHAN STREET
MADHOPURA CENTRAL
WAREHOUSE ROAD DISTT
MORENA (MADHYA PRADESH)
3. ASHOK KUMAR S/O LT SHRI
BHOGIRAM MANDIL, AGED
ABOUT 53 YEARS, CENTRAL
WAERHOUSE ROAD NEAR BALAJI
PLYWOOD MORENA AND COCA
COLA WALI GALI ADARSH
COLONY SURUCHI HOTEL KE
SAMNE GOLA KA MANDIR
GWALIOR (MADHYA PRADESH)
4. MUNNALAL S/O LT SHRI
BHOGIRAM, AGED ABOUT 56
YEARS, WAREHOUSE ROAD
MORENA (MADHYA PRADESH)
5. MAHESHCHAND MANDIL S/O LT
SHRI BHOGIRAM, AGED ABOUT
42 YEARS, WAREHOUSE ROAD
DISTT MORENA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANIL KUMAR SAXEN - ADVOCATE)
This petition coming on for hearing this day, the court passed the
following:
ORDER
With consent heard finally.
1. The present petition under Article 227 of the constitution taking
exception to the order dated 21.03.2018 passed by the trial court whereby
application preferred by the petitioners under Order I Rule 10 of the CPC
has been rejected.
2. Precisely stated facts of the case are that the petitioners are the co-
owners of the suit property and they are daughters of late Bhogiram
Chandil. Wife of Late Bhogiram (mother of petitioners) and two sons
(brothers of petitioners) executed an agreement to sale dated 06.02.2011
in favour of Subhash Chand Chandil (plaintiff herein) for sale of house.
Name of petitioners were referred in specific terms and it has been
mentioned that since they are married and have been given sufficient
gift/dowry, therefore, mother and two brothers of petitioners are the
owners/possessors of the suit property.
3. When the terms and conditions of agreement to sale was not
adhered to then purchaser filed a suit for specific performance of contract
on 28.06.2013 against mother and two brothers of petitioners. When
petitioners came to know about the pendency of such suit then they filed
an application under Order I Rule 10 of CPC to be impleaded as party
respondents, but same was rejected, therefore, this petition has been
preferred.
4. It is the submission of learned counsel for petitioners that
petitioners are daughters of late Bhogiram and Smt.Mulia Devi. Other
defendants are their brothers. The present petitioners have also stake in
the ancestral property, therefore, any agreement could not have been
executed by the mother/brothers of petitioners without their consent. If
any suit for specific performance of contract has been filed at the instance
of purchaser then present petitioners as sisters are proper and necessary
party. He relied upon contents of Order I Rule 10 of CPC and judgment of
Apex Court in the case of Moreshwar Yadaorao Mahajan Vs.
Vyankatesh Sitaram Bhedi, AIR 2022 SC 4710.
5. Learned counsel for the respondents opposed the prayer and
submitted that trial court has considered all the aspects and thereafter,
passed the impugned order. They are not at all proper and necessary party
because they are married sisters and in agreement to sale they have not
been impleaded because the relief has been sought against them. He relied
upon the case of Ganga Prasad Vs. Ku. Usha Shrivastava, 1993 (Part
II) MPWN 107.
6. Heard the learned counsel for the parties and perused the
documents appended thereto.
7. This is a case where application was preferred by the petitioners
under Order I Rule 10 of the CPC has been rejected. Petitioners appear to
be sisters of two defendants who are contesting the case because of virtue
of being family members and co-owners of the suit property.
8. In present case when partition in specific terms has not been
delineated and it is the case where they are to be treated as co-owners of
property left by Late Bhogiram. Supreme Court in the case of Moreshwar
Yadavram (supra) has delved upon almost similar facts and
circumstances, dismissed the SLP preferred by the petitioners/plaintiffs
on the ground that other members of family were not part of agreement to
sale still they are proper and necessary party.
9. Principle of dominus litus predominates the case. If the party is
proper and necessary party then it ought to be included in the lis so
multiplicity of the proceedings and malafide both can be avoided. If the
petitioners are included in the fray then effective decree could have been
passed.
10. In cumulative analysis, trial court erred in rejecting the application
preferred by the petitioner under Order I Rule 10 of CPC. Trial Court is
directed to consider the application and petitioners may be permitted to be
impleaded as party defendants. However; inclusion would be with the
caveat that the petitioners shall not adopt any activity which may delay
the trial and it is the duty of petitioners to help in early conclusion of
proceedings. Respondents shall also cooperate in this regard.
11. Accordingly, the present petition stands allowed and disposed of.
(ANAND PATHAK)
JUDGE
Rashid
RASHID
KHAN
2023.12.08
19:10:20
+05'30'
