Patna High Court
Harendra Pandey vs Dadan Chaudhary on 26 June, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.331 of 2025
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Harendra Pandey, son of Thakur Pandey, Resident of village- Nagri, Police
Station-Charpokhar, District- Bhojpur at Ara.
... ... Petitioner/s
Versus
1. Dadan Chaudhary, son of Jugeshwar Chaudhary, R/o village- Karwa, Police
Station- Arrah Mofasil, District- Bhojpur.
2. Lalji Chaudhari, son of Jugeshwar Chaudhary, R/o village- Karwa, Police
Station- Arrah Mofasil, District- Bhojpur
3. Langari Kunwar @ Ratilar Kunwar, widow of Sri Bhagwan Pandey,
Resident of Village and Post Office- Nagari, P.S- Charpokhari, District-
Bhojpur.
4. Pappu Pandey, @ Sanjay Kr. Pandey, Son of Sri Bhagwan Pandey, Resident
of Village and Post Office- Nagari, P.S-Charpokhari, District- Bhojpur.
5. Dularo Devi, widow of late Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
6. Janeshwar Pandey, Son of Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
7. Janardan Pandey, son of Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
8. Sailendra Pandey, son of Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
9. Dhamendra Pandey, son of Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
10. Nayanjharo Devi, son of Ram Sidh Pandey, Resident of Village and Post
Office- Nagari, P.S- Charpokhari, District- Bhojpur.
11. Laljhari Devi, son of Ram Sidh Pandey, Resident of Village and Post Office-
Nagari, P.S- Charpokhari, District- Bhojpur.
12. Kalawati Devi, son of Ram Sidh Pandey, Resident of Village and Post Office
Nagari, P.S-Charpokhari, District- Bhojpur
13. Madan Pandey, Son of Thakur Pandey, son of Ram Sidh Pandey, Resident of
Village and Post Office- Nagari, P.S- Piro, Charpokhari, District- Bhojpur.
14. Kailash Pandey, Son of Thakur Pandey, Son of Ram Sidh Pandey, Resident
of Village and Post Office- Nagari, P.S.- Piro, Charpokhari, District-
Bhojpur.
15. Rita Devi, Wife of Lalji Chaudhari, R/o Village- Karwa, Police Station- Ara,
District- Bhojpur at Ara.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Sanjay Kumar, Advocate
For the Respondent/s : Mr.
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
2/7
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 26-06-2025
The record taken up on mentioning being made on
behalf of the petitioner.
2. Heard learned counsel for the petitioner and I
intend to dispose of the instant petition at the stage of admission
itself.
3. The petitioner is aggrieved by the order dated
27.11.2024
passed by the learned District Judge-II, Bhojpur at
Ara in Title Appeal No.09 of 2020 whereby and whereunder the
application filed by the respondent no.15 under Order 1 Rule 10
(2) of the Code of Civil Procedure (hereinafter referred to as
'the Code') has been allowed and intervener was made a party
defendant.
4. The learned counsel for the petitioner submits that
the petitioner is the appellant before the learned first appellate
court and the respondent nos. 1 to 14 are also respondents
before the learned first appellate court. The intervener is the
wife of respondent no.2, namely Lalji Chaudhary. The
intervener/respondent no.15 filed an application for her
impleadment claiming that her husband had been traceless for
15-20 years and the learned first appellate court allowed her
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
impleadment in the title appeal. The said order is wrong and
illegal as the respondent no.15 did not produce any declaration
from any competent court about civil death of her husband.
When the husband is already party and he has not died, his wife
has got no right to get herself impleaded in the title appeal. The
learned counsel further submits that moreover, the intervener
claimed that her husband had been traceless for 15-20 years, but
she did not take any steps to get herself impleaded in the title
suit before the learned trial court. If the husband of the
intervener is legally alive, the intervener has got no legal right in
the suit property and she could not be made a party. Therefore,
the impugned order is not sustainable and the same needs to be
set aside.
5. Perused the record.
6. The short question involved in the present lis is
whether the respondent no. 15 has rightly been impleaded as
party defendant in the title appeal filed by the petitioner.
7. Order 1 Rule 10 (2) of the Code provides as under:-
"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
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
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."
8. A bare reading of the aforesaid provision shows
the court may at any stage of the proceeding can or add or
delete party to a suit if it feels presence of such party might be
necessary in order to enable the court effectually and
completely adjudicate upon and settle all the questions
involved in the suit.
9. 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 held that 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. On the other hand, 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 not be a person in favour of or against whom the
decree is to be made. It has been further held that 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.
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
It has further been held that Order 1 Rule 10 (2) CPC is not
about the right of a non-party to be impleaded as a party, but is
about the judicial discretion of the court to strike out or add
parties at any stage of a proceeding.
10. The Hon'ble Supreme Court in the case of
Sumtibai v. Paras Finance Co. Regd. Partnership Firm
Beawer (Raj.), reported in (2007) 10 SCC 82, has held that a
party having a semblance of interest in the suit property could
be impleaded as a party.
11. From the facts of the present case, it appears that
the intervener filed an application claiming that the appellant
and the respondent no. 1 had been compromising the matter and
on inspection by her counsel, the said fact was found to be true.
She has further claimed that her husband had been traceless for
15-20 years. She has further claimed that when the Title Suit
No. 02/1984 was filed in the year 1984, her husband was minor
and he was made a party during his minority. The Title Suit No.
02/1984 was decided on 03.01.2020 and preliminary decree was
prepared on 08.01.2020. The intervener has further claimed that
the appellant did not make her party in the appeal though in the
grounds of appeal, the appellant has mentioned that Lalji
Chaudhary had died more than 15 years ago. Therefore, the
intervener is his only heir. But the appellant deliberately made a
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
dead person party. The intervener has also filed a case for
preparation of final decree and the appellant is also a party
there. The intervener has further claimed that the respondent
no.1, namely Dadan Chaudhary has come in collusion with the
appellant and they want to grab the share of the intervener and,
towards this end, they had filed a compromise petition.
12. Now the objection of the petitioner to the
impleadment is on the ground that the intervener did not
produce any declaration about civil death of her husband and
though her husband became traceless, she did not get herself
impleaded in the title suit. Both the objections are
misconceived. When the appellant has himself taken a ground
that the husband of the intervener was dead and death occurred
15 years back, the appellant is not allowed to approbate and
reprobate at the same time. Moreover, making the said person as
a party when there is specific claim in the grounds that the said
person was dead, shows dishonest intention of the appellant and
every person, who comes before the court of law, is expected to
come with clean hands.
13. So far as the objection to the impleadment of the
intervener on the ground that she did not choose to make herself
party in title suit is concerned, that may be due to a number of
reasons. If the brother of her husband has been there and
Patna High Court C.Misc. No.331 of 2025 dt.26-06-2025
contesting the suit and she has no apprehension of her right
getting affected or her interest being endangered or loss of
share in the suit property due to the acts of her brother-in-law
and if she was satisfied with the conduct of case by him, she did
not have any occasion to get herself impleaded. But when there
is an apprehension that her interest may adversely be affected by
the acts of her brother-in-law/respondent no.1, then threat to her
interest appears to be real and she is within her right to claim
impleadment.
14. In the light of discussion made here-in-above, I
have no hesitation in holding that the learned first appellate
court has not committed any illegality or irregularity and there
appears no error of jurisdiction so as to interfere with the
impugned order and hence, the impugned order dated
27.11.2024 passed by learned District Judge-II, Bhojpur at Ara
in Title Appeal No. 09 of 2020 is affirmed.
15. As a result, the instant petition stands dismissed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.06.2025
Transmission Date NA
