Gopal Prasad Azad vs Durga Devi Tiwary And Ors
2025 Latest Caselaw 446 Patna

Patna High Court

Gopal Prasad Azad vs Durga Devi Tiwary And Ors on 7 July, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.158 of 2019
     ======================================================
     Gopal Prasad Azad S/o- Late Mundar Lal Poddar R/o- Mohalla-Naya Tola
     Fulwari, P.O., P.S., and District- Katihar

                                                          ... ... Petitioner/s
                                        Versus
1.   Durga Devi Tiwary W/o- Late vinod Kumar Tiwary R/o- Mohalla- Raj High
     School road, Pakur, P.O., P.S.,and District- Pakur.
2.   Sunita Kumari D/o- Late Vinod Kumar Tiwary R/o- Mohalla- Raj High
     School road, Pakur, P.O., P.S.,and District- Pakur.
3.   Anita Kumari D/o- Late Vinod Kumar Tiwary R/o- Mohalla- Raj High
     School road, Pakur, P.O., P.S.,and District- Pakur.
4.   Uma Kumari W/o- Pradeep            Dube    R/o-   village-   Dilarpur,   P.s.-
     Maihari,District- Katihar
5.   Sanju Kumari W/O- Birendra Prasad Bhagat R/o- shiv Mandir Chowk,
     Katihar

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. Raju Giri, Sr. Advocate
                                   Mr. Harsh Vardhan, Advocate
                                   Mr. Anshuman Jaipuriyar, Advocate
     For the Respondent/s   :      Mr.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                         ORAL JUDGMENT

Date : 07-07-2025

Heard the learned senior counsel for the petitioner and

I intend to dispose of the present petition at the stage of

admission itself.

02. Despite valid service of notice upon the

respondents, there is no representation on behalf of the

respondents.

03. Learned senior counsel appearing on behalf of the

petitioner submits that the petitioner is aggrieved by the order Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

dated 28.11.2018 passed by the learned Sub Judge-I, Katihar in

Title Suit No. 443 of 2013 whereby and whereunder the learned

trial court rejected the petition dated 06.08.2018 filed by the

petitioner under Order 1 Rule 10(2) of the Code of Civil

Procedure, 1908 (hereinafter referred to as 'the Code') for

impleadment of the respondent no. 5 and defendant 2nd party in

the title suit.

04. Learned senior counsel further submits that the

plaintiff/petitioner has filed the suit for specific performance of

contract as the plaintiff/petitioner entered into an agreement for

purchase of a piece of land with one Ajay Kumar Tiwari, but

said person died before executing the sale deed and the

defendants are his heirs/legal representatives, who have been

made parties. When the written statement was filed by

defendant no. 1, she disclosed that she has sold out 05 dhurs

land of suit property in favour of respondent no. 5, Sanju

Kumari. Learned senior counsel further submits that, however,

the learned trial court without considering the fact that a

subsequent purchaser should be made party, if the outcome of

the case is going to affect her right, did not allow the application

and refused to implead respondent no. 5 as party in the suit.

Learned senior counsel referred to the decision in the case of Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733,

wherein the Hon'ble Supreme Court in Para-7 held as under:

"7. In our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party."

05. Learned senior counsel further submits that the

impugned order has been passed against the settled principles of

law as propounded by the Hon'ble Supreme Court and the same

is not sustainable and is fit to be set a side. Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

06. Perused the record.

07. Having regard to the facts and circumstances and

submission made, except for the averment of the petitioner

which finds mention in the impugned order that the vendor of

the respondent no. 5 claims her title over the suit land, the

learned trial court proceeded in the matter on entirely different

manner holding that there was no agreement between the

plaintiff/petitioner and respondent no. 5. From perusal of the

plaint and written statement, I find that the defendant no. 1

claiming the land which is not entirely against the title of the

person who executed the agreement of sale in favour of the

plaintiff/petitioner. Yet, as per her case, after death of Nirmala

Devi, the answering defendant along with Ajay Kumar Tiwary

got 2.5 Dhurs of land each from 10 Dhurs land left behind by

Nirmala Devi. Thus, it is claimed that the heirs/legal

representatives of Nirmala Devi were having 2.5 Dhurs of land

each in their share.

08. Whatever may be the case put forward by

defendant no. 1, vendor of respondent no. 5, when the

respondent no. 5 is going to be affected by the outcome of Title

Suit No. 443 of 2013, it is proper that she should be added as

party in the present case, so that the matter would be decided Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

effectually and completely. Even if the respondent no. 5 is not a

'necessary party', she is a 'proper party' for all practical

purposes. Further, adding respondent No.5 as a party to the suit,

it does not appear that it would alter the nature of the suit or

create any new cause of action. Mandate of Order 1 Rule 10 (2)

of the Code is clear. The discretion vested upon the Court is that

if any person whose presence is necessary in order to enable the

Court effectually and completely to adjudicate upon and settle

all the questions involved in the suit, such person should be

added as party. In the present case, in absence of respondent no.

5, an effective order can be made but her presence is necessary

for a complete and final decision on the question involved in the

proceeding. The addition of parties is generally not a question

of jurisdiction of the Court but of a judicial discretion which

has to be exercised in view of all the facts and circumstances of

a particular case.

09. The Hon'ble Supreme Court in the case of

Mumbai International Airport (P) Ltd. v. Regency Convention

Centre & Hotels (P) Ltd., reported in (2010) 7 SCC 417 has

observed as under:-

"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 Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

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."

(Emphasis supplied)

10. Recently, the Hon'ble Supreme Court in the case

of J. N. Real Estate Vs. Shailendra Pradhan & Ors, reported in

2025 SCC OnLine SC 1015 in Para-29 held as under:

"29. It was observed that the court may exercise discretion in impleading a person who is a 'proper party' upon an application by a non- party to the suit for specific performance. If the court is of the view that the impleadment of such a proper party will alter the nature of the suit or introduce a new cause of action, it may either refuse to implead such person or order for his impleadment on certain conditions. However, even otherwise, the court would not be precluded from impleading a 'proper party' unconditionally Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

in its discretion. The relevant observations rendered in Mumbai International Airport (supra) read thus:

"24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides, etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and the court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if D claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of P representing that he is the co-owner with half-share, and P files a suit for specific performance of the said agreement of sale in respect of the undivided half-share, the court may permit the other co- owner who contends that D has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the defendant vendor to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if Patna High Court C.Misc. No.158 of 2019 dt.07-07-2025

any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject-matter of the suit for specific performance, and that it will decide in the suit only the issues relating to specific performance, that is, whether the defendant executed the agreement/contract and whether such contract should be specifically enforced.

........................................."

11. In the light of aforesaid discussion, I am of view

that the learned trial court has committed error of jurisdiction

while passing the impugned order dated 28.11.2018. Hence, the

impugned order dated 28.11.2018 is set aside and the petition

dated 06.08.2018 filed by the plaintiff/petitioner for

impleadment of respondent no. 5 as party-defendant in Title Suit

No. 443 of 2013 is allowed.

12. Accordingly, the present Civil Misc. Petition

stands allowed.

(Arun Kumar Jha, J) Ashish/-

AFR/NAFR              AFR
CAV DATE              NA
Uploading Date        11.07.2025
Transmission          NA
Date