Dhajaram vs Janakram (Died) Through Lrs.

Shri Gupta, learned counsel for respondents No.2 & 13 submits that he has filed the power today itself.

With the consent of the parties, the matter is heard finally.

The petitioner/plaintiff is challenging the order dated 1.2.2023 passed by the 1st Civil Judge, Class-II, Raigarh in Civil Suit No.A/432/2013 whereby the application filed under Order 1 Rule 10 of the CPC for impleadment of party has been rejected.

The petitioner/plaintiff has filed a civil suit for declartion of title, partition & separate possession and also for declaration of the will executed by late Leelambar in favour of Bhagirathi to be forged and void. In the said suit, the plaintiff has earlier specifically mentioned at para-5 of the plaint that there is no dispute with the legal heirs of deceased Joidharam and they are living separately at village Bankheta, District Korba. The defendants by filing their written statement have categorically raised an objection that the plaintiff has not arrayed the legal heirs of late Ratan and Joidharam, as also the sister as party in the suit. The defendants have also filed an application under Order 14 Rule 5 of the CPC wherein the plaintiff has opposed the said prayer. However, the objection of the defendants was allowed and for the same, additional issues were also framed. Thereafter, at the belated stage, after the evidence of both the sides was closed, the petitioner/plaintiff has filed an application for impleadment of daughters of deceased Joidharam and legal heirs of sister of the plaintiff in the suit, which was dismissed by the impugned order on the ground that the same was filed at the belated stage.

Learned counsel for the petitioner submits that as the trial Court has framed the issues about non-joinder of necessary parties and the same was not decided at the earliest, the application for impleadment can be filed at any stage of proceeding and only on the ground of delay, the application should not have been dismissed. So learned counsel prays to set aside the impugned orders and allow the application filed by the petitioner.

On the other hand, Shri Gupta, learned counsel for respondents No.2 & 13, would support the impugned order.

Heard learned counsel for the parties at length and perused the documents annexed with the writ petition.

Admittedly, the suit has been filed for partition and the respondents/ defendants have rightly raised an objection that sisters and all other legal heirs of the deceased have not been impleaded as party to the suit and for the same, the trial Court has also framed the additional issues. It is well settled that where necessary parties are not joined within the period of limitation, the suit must be dismissed. But, considering the nature of the suit, as the same was filed for partition, all the parties including the legal heirs/coparceners are necessary party for proper adjudication of the case. Order 1 Rule 10 (2) of the CPC gives ample power to the Court to allow the application at any stage of the proceedings. The said provision reads thus:-

“(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.”

The trial Court has not examined the issue as to whether the proposed party are necessary party, who ought to have been joined as party and in whose absence, no factual decree could be passed at all by the Court.

In the instant case, the defendants have raised a specific objection to implead the other parties in the suit and to meet out such deficiencies, the petitioner has moved an application for adding such party to the suit in a mechanical manner. Only on the ground of delay, the trial Court has dismissed the application, which, in the opinion of this Court, is not proper inasmuch as the Court only on the ground that the claim against such person is barred by limitation, it may refuse to add him as party and even dismiss the suit for non-joinder of necessary party.

In the circumstances, the trial Court is directed to decide the additional issues about non-joinder of necessary party and the application filed by the petitioner/plaintiff both, firstly and pass orders strictly on its own merits and thereafter proceed in the matter in accordance with law. It is made clear that the said issues shall be decided within a period of one month from the date of receipt of a copy of this order.

With the aforesaid observations, the Writ Petition is disposed of.