Hari Narayan Mishra @ Babuaji Mishra vs Umesh Yadav And Ors

This writ petition has been filed under Article 227 of the Constitution of India against order dated 30.08.2013 passed in Title Suit No. 230 of 2012 by

Civil Judge (Senior Division) â€" VII, Civil Court, Deoghar whereby and where under petition filed by the Respondent No.3 under Order I Rule 10 of

the Code of Civil Procedure has been allowed.

The brief facts of the case which are required to be enumerated herein for proper adjudication of the lis read here under as :-

The petitioner has filed a declaratory Title Suit being Title Suit No. 230 of 2012 for declaration that the plaintiff is absolute owner of the Schedule

‘A’ property and for a decree of recovery of possession of Schedule ‘B’ property if during pendency of the suit the plaintiff is

dispossessed by the defendant.

After filing of the suit, notices were issued upon the defendants and at that juncture, a petition was filed by Respondent No.3 under Order I Rule 10 of

the Code of Civil Procedure claiming herself to be Sabaiyat and Pujari of Kodwa Math premises consisting temples of Lord Kodeshwar Nath

Mahadeo, Lord Dudheshwar Nath Mahadeo and Lord Baiju. She, by taking the stand in the aforesaid application, has claimed herself to be the

necessary party for adjudication of the lis as because according to her, the suit land was settled in favour of the deity since last more than 80 years

and as such, being Sabaiyat and Pujari she has got valid right and interest and, therefore, in her absence the adjudication of the suit is not proper.

The plaintiff filed rejoinder to the aforesaid application disputing her claim.

The trial court, after appreciating the stand taken by the parties, allowed the application filed under Order I Rule 10 of the Code of Civil Procedure

vide order dated 30.08.2013 which has been challenged by the petitioner/plaintiff under Article 227 of the Constitution of India.

Mr. Rajendra Prasad, learned counsel appearing for the petitioner, has assailed the aforesaid order, inter alia on the ground that the Respondent

No.3 could not be able to establish before the trial court about her title and as such she cannot be a necessary party for adjudication of the lis but

without appreciating the aforesaid aspect of the matter, the trial court has allowed the aforesaid application by impleading her as party to the

proceeding and, therefore, the said order is not sustainable in the eye of law.

He further submits that merely by making reference about the title by taking the plea that the suit land was settled in favour of deity 80 years ago,

cannot be construed to be prima facie case for establishing any interest which warranted the trial court to allow the petition filed under Order I Rule

10 of the Code of Civil Procedure.

Miss Monalisha Singh, learned counsel appearing for the Respondent No.3 has defended the order passed by the trial court by making submission

that there is no infirmity committed by the trial court while allowing the petition filed under Order I Rule 10 of the Code of Civil Procedure. According

to her, the requirement as stipulated under the provision of Order I Rule 10 of the Code of Civil Procedure is that if the trial court comes to the

conclusion that presence of the applicant, which according to the trial court, is necessary for proper adjudication, the said applicant is required to be

impleaded as party to the proceeding. She therefore submits that since the Respondent No.3 has been able to make out a prima facie case by taking

the plea that the suit property has been settled in favour of the deity and being Sabaiyat and Pujari she has got valid right to contest and if in her

absence the suit would be decided, it will seriously prejudice the right and interest of the Respondent No.3. Therefore, submission has been made that

the trial court since has allowed the application filed under Order I Rule 10 of the Code of Civil Procedure by considering the aforesaid aspect of the

matter, the same cannot be said to suffer with any infirmity.

This Court, before going to the legality and propriety of the order, deems it fit and proper to refer to the provision of Order I Rule 10 of the Code of

Civil Procedure which reads here under as :-

“10. Suit in name of wrong plaintiffâ€" (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is

doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has

been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any

other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add partiesâ€" 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.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his

consent.

(4) Where defendant added, plaint to be amendedâ€" Where a defendant is added, the plaint shall, unless the Court otherwise directs, be

amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant

and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877), section 22], the proceedings as against any person added as

defendant shall be deemed to have begun only on the service of the summons.â€​

It is provided under Order I Rule 10 of the Code of Civil Procedure, more particularly the provision as contained under Order I Rule 10(2) which

provides provision conferring power upon the trial court who, 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.

Meaning thereby, the aforesaid provision confers wide power upon the trial court either to strike out or add party but the purpose is for complete

adjudication and to settle all the questions involved in the suit.

This Court has examined the rival submissions advanced on behalf of the learned counsel for the parties wherefrom the fact which is not in dispute

in this case is that a declaratory suit has been filed by the plaintiff for declaration of right and title over the suit property as has been mentioned under

Schedule ‗A‘, as referred in the plaint. The Respondent No.3 claiming herself to be Sabaiyat and Pujari of the property in question, as would

appear from the statement made at paragraph 7 of the petition filed under Order I Rule 10 of the Code of Civil Procedure wherefrom it is evident that

the Respondent No.3 has shown her interest on the basis of the fact that the land was settled in favour of the deity and since last more than 80 years

the entire property is known as Kodwa Math premises, she has got valid right to contest the suit. However, the aforesaid stand taken at paragraph 7

has seriously been disputed by Mr. Rajendra Prasad, learned counsel appearing for the petitioner but the question herein is that as to whether such

disputed question of fact can be looked into by the High Court under Article 227 of the Constitution of India under its supervisory jurisdiction?

As has been said hereinabove, while referring to the provision of Order I Rule 10 (2) of the Code of Civil Procedure wherefrom it is evident that

the trial court has got power under the aforesaid provision to strike out or add any party whose presence or absence is necessary for proper

adjudication of the suit. The aforesaid provision does suggest that the provision only speaks about presence of the parties irrespective of merit.

Meaning thereby, if the fact, basis upon which the impleadment under Order I Rule 10 has been made by the trial court, is disputed by the plaintiff, the

same requires adjudication and that will only be possible if the applicant filing petition under Order I Rule 10 of the Code of Civil Procedure is added

as party.

This Court, therefore, is of the view that in such circumstances, the petition filed under Order I Rule 10 of the Code of Civil Procedure by the

Respondent No.3, if has been allowed, the same cannot be said to suffer from infirmity for the reason that if the Respondent No.3 is claiming her right

over the property in question, it has to be adjudicated and adjudication can only be done in her presence.

This Court, therefore, is of the further view that this case is not coming under the purview of the power conferred under Article 227 of the

Constitution of India under its supervisory jurisdiction as because under Article 227 of the Constitution of India the High Court is only required to see

the error apparent on the face of the order.

As per the detailed discussion made hereinabove, according to the considered view of this Court, learned counsel has failed to point out any error

apparent on the face of record warranting any interference under Article 227 of the Constitution of India.

In view thereof, this writ petition fails and accordingly dismissed.