Ratan Kumar Sarawgi vs Vishwanath Sarawgi And Ors
2023 Latest Caselaw 3540 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
            Civil Writ Jurisdiction Case No.1428 of 2016
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Ratan Kumar Sarawgi, son of Late Ram Prasad Sarawgi alias Murlidhar Sarawgi, resident of Mohalla Sarawgi Chowk, Ward No. 10, Sitamarhi Municipality, Police Station Sitamarhi, Circle Dumra, Subdivision Sitamarhi, Sadar, District Sitamarhi.

... ... Petitioner/s Versus

1. Vishwanath Sarawgi alias Murlidhar Sarawgi, son of late Ram Prasad Sarawgi.

2. Adarsh Sarawgi, son of Vishwanath Sarawgi

3. Smt. Puja Sarawgi wife of Adarsh Sarawgi All resident of Mohalla Sarawgi Chowk, ward No. 10, Sitamarhi, Municipality Police Station - Sitamarhi, Subdivision Sitamarhi Sadar, District- Sitamarhi.

4. Sanchit Sarawgi son of Anil Sarawgi resident of village Sarawgi Chowk Sitamarhi P.S. Sitamarhi District - Sitamarhi At present resident of Radhey Krishna Market Ring Road, Surat.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ganpati Trivedi, Sr. Advocate Mr. Najmul Hoda, Advocate For the Respondent/s : Mr. J.S. Arora, Sr. Advocate Mr. Bachan Jee Ojha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 08-08-2023

Heard Mr. Ganpati Trivedi, learned senior counsel for the

petitioner and Mr. J.S. Arora, learned senior counsel for the

respondents.

2. This Writ Application has been filed against the order Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

dated 19.11.2015 passed by the learned Sub Judge-V, Sitamarhi

passed in Eviction Suit No. 02 of 2011 allowing the application

of the intervenor / respondent No. 4 filed under Order 1 Rule 10

and Section 151 of the Code of Civil Procedure for adding him

as a party.

3. The brief facts of the case are that the plaintiff /

petitioner has filed Eviction Suit No. 02 of 2011 for eviction of

defendant-respondent Nos. 1 to 3 from the suit premises on the

ground of default and personal necessity and for arrears of rent

and other formal reliefs. The case of the plaintiff-petitioner is

that his father died in the year 1955 leaving behind three sons

namely, plaintiff / petitioner, defendant / respondent No.1 and

Hari Prasad Sarawgi. Through a registered sale deed of the

partition dated 19.12.1988 vide deed No. 10238 the heirs

partitioned all the properties. After partition, the parties applied

for mutation and were mutated and are paying rent. In partition,

the suit premises fell in the share of the plaintiff which is

mutated in his favour and is paying rent to the State of Bihar on

grant of rent receipt and the petitioner constructed new

buildings on the same. The defendant No. 1 did not get any

residential house and took the suit premises on rent since the

suit premises was situated in prime location of the Town. The Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

premises was let out with effect from 01.01.1991 on monthly

rent of Rs. 36,000/- and gradually the rent has been increased to

Rs. 50,000/-. In March, 2009, on ground of personal necessity

for personal use for expansion of his business, the plaintiff

requested the defendants to vacate the suit premises but they

failed to comply the same and became defaulter. Hence, the

aforesaid Eviction Suit has been filed.

4. Defendant No. 1 filed his Written Statement. Defendant

Nos. 2 and 3 also filed their separate written statement who are

son and daughter-in-law of defendant No.1. P.W. 1 to 5 were

examined. At this stage, Sanchit Sarawgi the grandson of

defendant No. 1 filed an application dated 01.05.2014 under

Order 1 Rule 10 and Section 151 C.P.C. for his addition as party

on the ground that he has some share in the suit property; the

registered deed of partition dated 19.12.1988 was fraudulent as

it shows unequal division of properties amongst the decendants

of Late Ram Prasad Sarawgi and his interest was not considered

and accordingly, he is a necessary party. The plaintiff-petitioner

filed rejoinder that the grandson of defendant No. 1 has

intervened at the instance of defendant No. 1 only to delay in

disposal of the suit. On the date of registered partition deed

dated 19.12.1988, petitioner was not born and he was born in Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

year 1993 only and is resident of Surat in Gujarat and the

interest of family was represented through Karta defendant No.

1. The learned Court below allowed the intervention petition.

5. Mr. Ganpati Trivedi, learned senior counsel has

submitted that the learned trial Court failed to consider that

defendant No. 1 is grandfather of intervenor who has filed

written statement and was contesting the suit. Defendant No. 1

in his written statement admitted that he was Karta and manager

of his family and the said fact has also been admitted by

defendant Nos. 2 and 3 and in their written statement they

specifically admitted in paragraph 11 that there had been a

family arrangement on 19.12.1988 in which defendant No. 1

was first party. Hari Prasad Sarawgi was 2nd party and the

plaintiff was 3rd party. He further submits that defendant No. 1

has not assailed the said registered deed of partition nor he

sought cancellation on the ground that it being forged or

fraudulent. He has next submitted that defendant No. 1 who is

grandfather of Intervenor acknowledging the said partition

dated 19.12.1988 executed several sale deeds to the properties

which was alloted to him in their share. The Intervenor is

neither a necessary party nor proper party in the suit and has no

interest in the suit premises.

Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

6. He has further submitted that suit had been filed for

eviction under BBC Act on ground of default and personal

necessity. However, an alternative relief for eviction on the basis

of title of the petitioner had been made in relief in para 19 (Ka)

of the plaint that in case the defendant denies the title of the

plaintiff, then the Court will declare plaintiffs' title and due to

that reason he paid ad valorem Court fee. The amendment was

formal in nature and not changed the nature of suit. Learned

senior counsel for petitioner has further submitted that

defendant No. 1 on the basis of registered family settlement

dated 19.12.1988 has gifted a portion of suit Plot No. 87 vide

gift deed executed on 27.05.2011 wherein he has accepted the

petitioner in northern and eastern boundary which clearly shows

that defendant No. 1 has already accepted the partition deed

dated 19.12.1988 and he cannot denied the same at this stage.

7. Per contra, learned senior counsel Mr. J.S. Arora for

respondents has submitted that the Eviction Suit filed by the

petitioner was in fact a suit for declaration of title and recovery

of possession in respect of the ancestral properties by alleging

previous partition. The plaintiff amended the valuation of Court

fee portion of plaint and in relief No. 19 (Ka), it was

incorporated that if defendant denies title of the plaintiff, then Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

Court be pleased to declare plaintiff's title of the suit property

for which ad valorem Court fee has been paid. Further, he has

submitted that the learned Court below has rightly passed order

for addition of the respondent No. 4 as party since the

adjudication of title will directly affect the respondent. The

petitioner failed to point out any error of law or jurisdictional

error committed by the learned court below. It is settled law that

if a party is being prejudiced from the outcome of a suit, then he

is a necessary or proper party to the said suit and he must be

allowed to be added as party to the suit. If respondent No. 4 is

not allowed to be added as a party in the suit, he will be highly

prejudiced from the outcome of the aforesaid suit. Further, he

has submitted that suit property is a joint family property and

the respondent is major and as a coparcener / co-sharer in the

property in suit, he has got every right to protect his interest in

the said property.

8. Learned senior counsel for respondents has further

submitted that even if a decree is granted in favour of the

plaintiff, the respondent No. 4 who is in possession of the suit

property, may object to the execution of the said decree on the

ground that he was not made party to the suit despite being in

possession of the same. The Court has a duty to see whether the Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

presence of the proper parties would faciliate the complete

determination of the matter in dispute.

9. The provisions of Order 1 Rule 10(2) of the Code are

very wide and the powers of the Court are equally extensive.

Even without an application to be impleaded as a party, the

Court may, at any stage of the proceedings order that the name

of any party, 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.

10. It is well settled that the underlying principle

regarding the addition of parties is that there must be finality to

litigation and to secure that purpose it would be incumbent upon

the Court to add a party whose presence would be necessary to

put an end to all the controversy in the litigation finally,

"questions involved in the suit" referred to in Order 1 Rule 10

means not only the questions involved in the suit originally

framed between the parties to the suit but also any dispute

between the parties of the suit and a third party, and that the

object of the provision is that where several disputes arise out of

on subject matter all the parties interested in such disputes Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

should be brought before the Court and all questions in contest

between them should be completely settled in the action.

11. The Hon'ble Supreme Court in the judgment reported

in Razia Begum Vs. Sahebzadi Anwar Begum and Ors (AIR

1958 SC 886) had observed:

" There cannot be the least doubt that it is firmly established as a result of judicial decisions that a person may be added as a party to a suit he should have a direct interest in the subject matter of the litigation whether it raised questions relating to movable or immovable property".

12. The Hon'ble Supreme Court in case of Mumbai

International Airport private Limited Vs. Regency

Convention Center and Hotels private Limited and Ors.

(2010) 7 SCC 417 observed that the Court is given the

discretion to add as a party, any person who is found to be a

necessary party or proper party. 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. It has

been held that 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 dispute in the suit, though he need Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

not be a person in favour of or against whom the decree is to be

made. If a person is not found to be proper or necessary party,

the Court has no jurisdiction to implead him, against the wishes

of the plaintiff.

13. This Court in Md. Sahood Alam Vs. Md. Nayyer

(2016) (1) PLJR 307 observed that the inter se dispute between

the defendants cannot be decided in a suit filed by the plaintiff.

Order 1 Rule 10 C.P.C. speaks about the jurisdiction of the

Court not the right of a party for being added as defendant. If

the intervenors are not necessary party and in absence of the

intervenors, if the dispute raised between the parties can be

effectively decided by the Court, the Court should not add a

person whose presence is not required for just decision of the

case.

14. In Rameshchand Kundanmal Vs. Municipal

Corporation of Greater Bombay (1992) 2 SCC 524 the Apex

Court held in paragraph 14 as under:

"It cannot be said that the main object of the rule is to prevent multiplicity of action though it may incidentally have that effect....It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

prosecute his own cause of action."

15. In Vidur Impex and Traders (P) Limited and

Others Vs. Tosh Apartments (P) Ltd. (2012) 8 SCC 384 in

paragraph 41, the Hon'ble Supreme Court has given broad

principles which should govern disposal of an application for

impleadment are as under:

"41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restrain order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.

16. Having heard the learned senior counsel for the

parties and on considering the material on record, it

appears that learned Court below has considered the

impleadment application and submissions made on behalf

of the parties and passed the detailed and reasoned order

exercising his jurisdiction in the facts and circumstances of

the case. The learned Court below observed that plaintiff

has also sought alternative relief of declaration of title and

recovery of possession. The defendants denied relationship

of landlord and tenant and asserted their independent title

over the suit land. The Court framed issues on 28.05.2013

which includes issue of title as well. The petitioner

challenged the deed of partition dated 19.12.1988 as

fraudulent and illegal. So, the suit does not seems to be

one of tenancy rather complex issue of title is involved

here. The intervenor has no right to birth in the suit

property is a matter of investigation. Mere addition the

intervenor as party will not create an interest in the suit Patna High Court CWJC No.1428 of 2016 dt.08-08-2023

property. So, the learned Court below found the presence

of the intervenor is necessary for efficacious adjudication

of this case and the addition is also necessary for

avoidance of multiplicity of suits.

17. Considering the facts and circumstances of the

case, submissions made on behalf of the parties and the

legal provisions stated above, in my considered opinion,

there is no illegality or irregularity in the impugned order

for interference of this Court in its supervisory jurisdiction

under Article 227 of the Constitution. The impugned order

is a reasoned order. This Writ Application is devoid of

merit and liable to be dismissed.

18. This Writ Application is, accordingly, dismissed.

The stay orders granted by this Court in this case is

vacated. The trial Court is directed to proceed the case in

accordance with law.

(Sunil Dutta Mishra, J) ashutosh/-

AFR/NAFR                AFR
CAV DATE                02.08.2023.
Uploading Date          08.08.2023.
Transmission Date