Patna High Court
Naresh Jha vs Chandan Kumar on 22 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.428 of 2023
======================================================
Naresh Jha, Son of Late Ramkarn Jha, Resident of Village- Mahathi, Tole-
Sonwar Chak, P.S.-Bibhutipur, Distt- Samastipur.
... ... Petitioner/s
Versus
1. Chandan Kumar S/O Late Akhileshwar Prasad Resident of Village- Mahathi,
P.O- Mahathi, P.S.- Bibhutipur, Distt- Samastipur, Bihar.
2. Govind Jha S/O Naresh Jha Resident of Village- Mahathi, Tole- Sonwar
Chak, P.S.- Bibhutipur, Distt- Samastipur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Md. Waliur Rahman, Advocate
Mr.Kumar Praveen, Advocate
For the Respondent/s : Mr.Binod Bihari Sinha, Advocate
Mr. Amarjeet Chaudhary, Advocate
Mr. Ajay Dutt Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 22-05-2025
The present petition has been filed under Article 227
of the Constitution of India challenging the order dated
02.02.2023
passed by learned Sub Judge-IV, Rosera in Title Suit
No. 199 of 2020 whereby and whereunder the learned trial court
rejected the application dated 07.03.2022 of the intervener-
petitioner filed under Order 1 Rule 10 (2) read with Section 151
of the Code of Civil Procedure (hereinafter referred to as 'the
Code').
2. Briefly stated, the facts of the case, as it appears
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
from the record, are that the plaintiff/respondent 1 st set filed
Title Suit No. 199/2020 before the court of learned Sub Judge-
IV, Rosera for a decree of specific performance of contract in
respect of agreement for sale dated 05.10.2018 executed by the
defendant/respondent 2nd set with ancillary reliefs. The
defendant appeared and filed his written statement and contested
the suit. The intervener petitioner coming to know about the
pendency of the suit approached the learned trial court and filed
an application dated 07.03.2022 for impleading him as a party
defendant under Order 1 Rule 10 (2) read with Section 151 of
the Code. The plaintiff/respondent 1st set filed rejoinder dated
29.03.2022 praying to reject the petition dated 07.03.2022 filed
by the intervener. After hearing the parties, learned Sub Judge-
IV, Rosera rejected the application of the intervener petitioner
vide order dated 02.02.2023, which is under challenge before
this Court.
3. The learned counsel for the petitioner submitted
that the order of the learned trial court is not sustainable as the
learned trial court completely ignored the facts as brought out
by the intervener petitioner in his petition seeking impleadment.
The intervener petitioner is the exclusive owner of the subject
matter of the suit property and the said property is self acquired
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
property of the intervener. The said property was acquired by
way of registered sale deed dated 11.12.1974. The learned trial
court failed to appreciate that the defendant has no authority to
execute a purported agreement for sale with the plaintiff, which
is subject matter of the suit because the intervener petitioner is
still alive and the property is his self acquired property. The
learned counsel further submitted that the defendant has no
authority to execute agreement for sale with regard to the self
acquired property of his father with anybody else till the life
time of his father and any agreement for sale, which is subject
matter of the suit with regard to the self acquired property of
intervener petitioner, is nothing but an abuse of process of the
court. In these circumstances, the intervener petitioner is
necessary party for proper adjudication of the suit.
4. The learned counsel further submitted that when
the defendant has no right, title and interest over the suit
property, the suit brought by the plaintiff is not maintainable as
such. Hence, when the intervener petitioner specifically pointed
out that property involved in the suit is his self acquired
property and defendant does not have any right, title and interest
to deal with the said property during life time of the intervener
petitioner, the learned trial court ought to have considered this
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
fact and ought to have held that intervener petitioner is
necessary party for just and proper adjudication of the present
suit.
5. The learned counsel further submitted that no
doubt plaintiff is dominus litis and he can choose the party
against whom he wants to contest but the courts have been
conferred with the power and discretion to add or remove party
to avoid multiplicity of litigation and also for achievement of
substantial justice. Moreover, the petitioner has every right to
protect his legitimate claim/right with regard to his self acquired
property and if he is not allowed to be impleaded as defendant,
the intervener petitioner would suffer irreparable loss.
6. The learned counsel further submitted that in the
light of aforesaid discussion, it is manifestly clear that the
impugned order suffers from material irregularity and, therefore,
an interference is much required by this Court.
7. The learned counsel referred to a decision of the
Hon'ble Supreme Court in the case of Razia Begum vs.
Sahebzadi Anwar Begum and Others reported in AIR 1958 SC
886 wherein it has been that that there cannot be the least doubt
that it is firmly established as a result of judicial decisions that
in order that a person may be added as a party to a suit, he
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
should have a direct interest in the subject-matter of the
litigation whether it raises questions relating to moveable or
immovable property.
8. The learned counsel next referred to a decision of
Hon'ble Federal Court in the case of United Provinces vs. Mt.
Atiqu Begum and others reported in AIR 1941 FC 16 wherein
it has been held that a person would be a necessary party if he
ought to have been joined, that is to say, in whose absence no
effective decree can be passed at all. He would be a proper party
to be impleaded if his presence is necessary for an effectual or
complete adjudication and in the given facts and circumstances
of the present case, the intervener petitioner is necessary party
because no effective decree can be passed at all as the intervener
petitioner is having right, title and possession over the suit land.
9. The learned counsel further referred to a decision
of this Court in the case of Smt.Baby Devi vs. State of Bihar &
Ors reported in 2024 (2) BLJ 763 wherein this Court allowed
the application of the petitioner filed under Order 1 Rule 10 (2)
read with Section 151 of the Code and in the said case, the
petitioner has only been claiming her right, title and interest
over a portion of the suit land.
10. The learned counsel also referred to a decision of
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
the Hon'ble Supreme Court in the case of P.C. Varghese vs.
Devaki Amma Balambika Devi and others reported in (2005) 8
SCC 486 to stress the point that in order to avoid multiplicity of
proceedings, the plaintiff is allowed to claim a decree for
possession and/or partition in a suit for specific performance.
11. The learned counsel thus submitted that if a suit
for specific performance is decreed, the question would arise for
possession of the suit property and as the intervener petitioner
has been denying the right, title and interest of the defendant
no.1, entered into an agreement of sale of the suit property, to
avoid unnecessary complication, impleadment of the intervener
petitioner is essential.
12. Thus, learned counsel submitted that the
impugned order is not sustainable and the same be set aside and
application of the intervener petitioner be allowed.
13. On the other hand, learned counsel appearing on
behalf of the plaintiff/ respondent 1st set vehemently contended
that the present civil miscellaneous petition has been filed on
frivolous and vexatious grounds and no valid case is made out
for interference by this Court in its extraordinary jurisdiction.
The learned counsel further submitted that the defendant in the
suit, namely Govind Jha, owned and possessed the suit land of
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
Mauza Rosera and to meet necessity agreed to sale his land and
executed a deed of Mahadnama bearing No.10971 dated
05.10.2018 in favour of plaintiff/respondent 1st set. When he did
not execute the sale deed in favour of the plaintiff, the plaintiff
filed the suit before the learned trial court for specific
performance of contract. In the said suit, the intervener
petitioner filed a petition for impleadment on completely wrong
submission. The land, in question, is not self acquired property
of the intervener petitioner. It was purchased by Late Ram
Karan Jha in the name of his sons, namely Ramraji Jha and
Naresh Jha and after partition, the defendant/respondent no. 2,
namely Govind Jha came in peaceful possession over the land in
question. This defendant further leased out his share to one
Santosh Sahni through a registered lease deed dated 17.10.2014
in full knowledge of the petitioner and the intervener petitioner
never disputed the said lease. This defendant Govind Jha further
executed the Mahadnama of his share in favour of
plaintiff/respondent 1st set on 05.10.2018 in full knowledge of
intervener petitioner. Now, the petitioner is taking a stand that
the agreement for sale was entered into without his knowledge,
but the same is not correct. Thus, learned counsel submitted that
property, in question, came in exclusive share of defendant and
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
the defendant has been in its possession and he rightfully
executed the agreement for sale. Therefore, the learned trial
court after proper consideration rightly held that in a suit filed
by the plaintiff for specific performance of contract, the
intervener petitioner is not a necessary or proper party as he is
not to a party to agreement for sale. However, the intervener-
petitioner may take his independent course of action. Therefore,
the order of the learned trial court is just and proper in the eyes
of law and needs to be affirmed.
14. I have given my thoughtful consideration to the
rival submission of the parties and also perused the records.
15. Order 1 Rule 10 (2) of the Code reads 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 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."
16. Obviously, the court has got ample power to
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
strikeout the name of any person at any stage of the proceeding.
It is entirely at the discretion of the court and the said discretion
is to be exercised by the court for effectually and completely to
adjudicate upon and settle all the questions involved in the suit.
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, in Para-22,
has held as under:-
"22. Let us consider the scope and ambit
of Order 1 Rule 10(2) CPC regarding striking
out or adding parties. The said sub-rule is not
about the right of a non-party to be
impleaded as a party, but about the judicial
discretion of the court to strike out or add
parties at any stage of a proceeding. The
discretion under the sub-rule can be exercised
either suo motu or on the application of the
plaintiff or the defendant, or on an
application of a person who is not a party to
the suit. The court can strike out any party
who is improperly joined. The court can add
anyone as a plaintiff or as a defendant if it
finds that he is a necessary party or proper
party. Such deletion or addition can be
without any conditions or subject to such
terms as the court deems fit to impose. In
exercising its judicial discretion under Order
1 Rule 10(2) of the Code, the court will of
course act according to reason and fair play
and not according to whims and caprice."
17. However, the discretion of the court under Order 1
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
Rule 10 (2) of the Code is not unlimited but such discretion
could be exercised even against the wishes of the plaintiff in
case a party is found to be a necessary or proper party. Thus, the
courts can order for impleadment even against the wishes of the
plaintiff if a party has a direct and legal interest in the subject
matter of the property. With regard to aforesaid proposition,
reliance could be placed on the decision of Hon'ble Supreme
Court rendered in the case of Vidur Impex & Traders (P) Ltd. v.
Tosh Apartments (P) Ltd., reported in (2012) 8 SCC 384
wherein the Hon'ble Supreme Court in paragraph 41 laid down
the broad principles governing the disposal of application for
impleadment, which is as follows :
"41. Though there is apparent
conflict in the observations made in some of the
aforementioned judgments, the broad principles
which should govern disposal of an application
for impleadment are:
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
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
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.
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 restraint order passed by the
court or the application is unduly delayed then
the court will be fully justified in declining the
prayer for impleadment."
18. However, the Hon'ble Supreme Court in the case
of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733,
held that in a suit for specific performance of a contract for sale
of property, a stranger or a third party to the contract cannot be
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
added as defendant in the suit. But 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 the aforesaid decision can only be understood to
mean that a third party cannot be impleaded in a suit for specific
performance if he has no semblance of title in the property in
dispute. It further held that obviously, a busybody or interloper
with no semblance of title cannot be impleaded in such a suit.
That would unnecessarily protract or obstruct the proceedings in
the suit. The Hon'ble Supreme Court further held that the
aforesaid decision will have no application where a third party
shows some semblance of title or interest in the property in
dispute. Even in the case of Kasturi (supra), the Hon'ble
Supreme Court held that intervener must be directly and legally
interested in the answers to the controversies involved in the suit
for specific performance of the contract for sale. It referred to
the case of Amon vs. Raphael Tuck and Sons Ltd. reported in
(1956) 1 All ER 273 wherein it has been held that a person is
legally interested in the answers to the controversies only if he
can satisfy the court that it may lead to a result that would affect
him legally.
19. Further, in the case of Razia Begum v. Sahebzadi
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
Anwar Begum, reported in AIR 1958 SC 886, the Hon'ble
Supreme Court has held that in a suit relating to property in
order that a third party may be impleaded, he should have a
direct or legal interest in the subject matter of the litigation as
distinguished from a commercial interest. Legal interest so
interpreted means that the result of the suit would affect the
third party legally.
20. Now coming to the facts of the case, the
intervener petitioner claims his right, title and interest over the
suit property. Admittedly, the suit property was purchased in the
name of the petitioner and his brother on 11.12.1974. The
petitioner further claims that the suit property is in peaceful
possession of this petitioner and a house and a vacant land form
the suit property and the petitioner has complete right, title and
interest over the suit land. Though the respondent no. 1 claims
the said property fell in share of his vendor
defendant/respondent no.2, the petitioner has been able to show
his interest in the title of the property in dispute. He cannot be
said to be a busybody or interloper. If the plaintiff succeeds, the
result would affect the intervener petitioner legally and the
intervener has a direct and legal interest in the answers to the
controversies involved in the suit for specific performance of
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
contract for sale (Kasturi supra). The petitioner has been able to
show more than a semblance of interest and has been claiming
title as exclusive owner of the suit property. As already
observed, the outcome of the suit in favour of the plaintiff
would directly affect the rights of the intervener petitioner.
Moreover, in absence of the intervener petitioner, the decree
would remain ineffective if the claim of the intervener is
sustainable with regard to right, title and interest over the suit
property. In such circumstances, asking the intervener petitioner
to take his independent course of action would be multiplying
the litigation and blocking the effective and complete
adjudication of the subject matter of lis. Therefore, I am of the
considered opinion that the intervener petitioner ought to have
been made party defendant in the suit.
21. In the light of facts and circumstances discussed
here-in-above and in view of law laid down by the Hon'ble
Supreme Court, I am of the considered opinion that the learned
trial court committed error of jurisdiction when it dismissed the
petition of the petitioner. Hence, the order dated 02.02.2023
passed by the learned Sub Judge-IV, Rosera in Title Suit No.
199 of 2020 is set aside. Consequently, the petition dated
07.03.2022 filed by the intervener-petitioner under Order 1 Rule
Patna High Court C.Misc. No.428 of 2023 dt.22-05-2025
10 (2) read with Section 151 of the Code is allowed.
22. As a result, the instant petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 26.03.2025
Uploading Date 22.05.2025
Transmission Date NA
