Basiranbi vs Jaitunbi and others

Hon''ble Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner has called in question the order passed by the Court below dated 14.07.2011, whereby, her application under Order 1 Rule 10 of CPC was rejected. By filing application under Order 1 Rule 10 of CPC Annexure P-5, the petitioner stated before the Court below that Khusi Khan, Halku Khan and Mangal Khan were real brothers All the aforesaid brothers have expired. Mangal Khan had no issue and his only wife expired. The property in question was never partitioned by any oral or written arrangement. It is stated that the petitioner has direct interest in the property and she is a necessary party. The Court below has rejected the said application by holding that the matter is pending since 2006. All the proceedings have come to an end and matter is fixed for final hearing. The application was rejected on the ground of inordinate delay in filing the application and also on the ground that petitioner has failed to show how she is a necessary party in the matter.

Shri S.S. Rajput, Advocate for the petitioner relied on 1999 (1) MPWN 19 notes (Sultan Khan Vs. Rehman Khan) and 2005 (2) MPHT 44 (Sukhram Vs. Sarjubhai and others).

Shri D.D. Bansal, Advocate for the respondent No. 1 on the contrary supported the order passed by the Court below.

I have heard the learned counsel for the parties and perused the record.

The Court below has rejected the application mainly on the ground that matter is pending since 2006 and petitioner has filed the application at the fag end of the matter when it was posted for final hearing. If at this stage, application is allowed, clock will be required to be put back from initial stage and all the proceedings which have taken place will become redundant. Thus on the ground of delay, the Court below has rejected the application. No doubt, in the judgment cited by Shri Rajput it is laid down that even in appellate stage, Court can implead the necessary party. Order 1 Rule 10 is also an enabling provision for exercise of such a power by the Court.

The Apex Court in JT 1999 (10) SC 369 (Mohd. Khursheed Ali Vs. Special Court) held that application for impleadment as party was rightly rejected because it was filed at the fag end and if such an application is granted, it would result in unnecessary delay. The order of the High Court upholding the rejection of application for impleadment was upheld by the Supreme Court. Para 5 of this judgment reads as under:-

It is rightly pointed out by the Special Court that the proceedings are almost at the fag end and granting that application would result in unnecessary delay. If for this reason it thought fit to reject the application, it cannot be said that in doing so it has acted illegally or improperly. The High Court was also right in dismissing the Writ Petition.

The scope of interference under Article 227 of the Constitution is well defined. In the proceedings under Article 227, this Court is not required to act as an Appellate Court. In absence of any jurisdictional error, serious procedural impropriety or perversity, no interference is warranted. Another view is possible is not a recognized ground for interference in Article 227 proceedings. The Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, laid down the law in this regard. In the opinion of this Court, the Court below has taken a plausible view and this view is permissible in law in the light of judgment of Supreme Court in Mohd. Khursheed Ali (supra). It may be open for the petitioner to take appropriate steps for asserting her rights in the property in question. On the basis of aforesaid, I find no reason to invoke Article 227 jurisdiction. Petition sans substance and is hereby dismissed. No costs.