Kailasho and Another vs Joginder and Others

L.N. Mittal, J.—Plaintiffs No. 2 and 3, who are also legal heirs of plaintiff No. 1 since deceased, have filed this revision petition under Article 227 of the Constitution of India impugning order dated 11.11.2011 Annexure P-8 passed by the trial Court thereby dismissing application Annexure P-6 filed by the plaintiffs under Order 1 Rule 10 read with Section 151 of the CPC (in short, CPC) for impleading Ishwar Singh, Kamla and Omi as party defendants No. 3 to 5 to the suit which has been instituted against respondents Joginder and Yoginder as defendants. The plaintiffs alleged that plaintiff No. 1 Chanderpati had performed Kareva marriage with Dalip Singh and out of it, plaintiffs No. 2 and 3 (petitioners) were born as daughters. In the suit, the plaintiffs have challenged registered release deed allegedly executed by Dalip Singh in favour of respondents/defendants who are his grand sons. The plaintiffs have also alleged that they being heirs of Dalip Singh have inherited the suit property.

In application Annexure P-6, the plaintiffs alleged that Dalip Singh left behind a son Ishwar Singh and two daughters Kamla and Omi from his first wife Smt. Mewa and they also being natural heirs of Dalip Singh, are necessary party to the suit.

The application was opposed by the defendants by filing reply Annexure P-7. It was alleged that objection regarding non-impleadment of the aforesaid necessary parties was raised by defendants in preliminary objection No. 8 of their written statement Annexure P-2, but in spite thereof, the plaintiffs did not implead the said persons as party to the suit at that initial stage and the instant application has been moved after seeking numerous adjournments for final arguments in the suit.

Learned trial Court vide impugned order Annexure P-8 has dismissed application Annexure P-5 filed by the plaintiffs who have therefore, filed this revision petition to challenge the said order.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioners contended that persons sought to be added as party to the suit being among the natural heirs of Dalip Singh, are necessary party to the suit and, therefore, application filed by the plaintiffs should have been allowed in view of Order 1 Rule 10 CPC.

On the other hand, counsel for the respondents reiterated that in spite of specific objection taken by defendants in the written statement that aforesaid necessary parties have not been impleaded, the plaintiffs did not implead them at that stage and moved the instant application Annexure P-6 at final stage of the suit after seeking adjournments for final arguments. Consequently, the application has been rightly dismissed. Reliance in support of this contention has been placed on judgment of this Court in the case of Homey Bee Natural Products Private Limited Vs. Admarjodh Singh, It was also argued that plaintiffs have not sought declaration of their ownership over the suit land and, therefore, aforesaid persons are not necessary party to the suit. Order 1 Rule 10 CPC consists of two parts. If a person is necessary party to the suit he has to be impleaded as such and the Court may do so even suo motu. However, in the case of proper party, it is discretion of the Court to implead the person as party or not. In the instant case, the persons, sought to be added as defendants No. 3 to 5, are necessary party to the suit. The plaintiffs are claiming to be heirs of Dalip Singh and have alleged to have inherited the suit property from Dalip Singh. For adjudication of said claim of the plaintiffs, the persons sought to be added, admittedly being natural heirs of Dalip Singh, are necessary party to the suit. It does not lie in the mouth of respondents/defendants to contend that the aforesaid persons are not necessary party to the suit because the defendants have themselves pleaded in the written statement that the said persons are necessary as well as proper party to the suit. Consequently, in view of mandatory provision of Order 1 Rule 10 CPC, aforesaid persons being necessary party to the suit have to be added as party to the suit.

As regards late filing of the application by the plaintiffs at final stage of arguments in the suit, in spite of objection raised by the defendants in the written statement, the plaintiffs can be burdened with heavy costs but their application could not have been dismissed merely on this ground particularly in view of mandatory provision of Order 1 Rule 10 CPC requiring impleadment of necessary party to the suit. Judgment in the case of M/s. Honey Bee Natural Products Private Limited (supra) is not applicable to the facts of the instant case because in that case, amendment of plaint had also been sought besides addition of party whereas in the instant case, only impleadment of additional defendants is sought and amendment of plaint is not claimed. For the reasons aforesaid, I find that application Annexure P-6 filed by the plaintiffs is required to be allowed because persons, sought to be added as party to the suit, are necessary parties to the suit. Impugned order of the trial Court, dismissing the said application, therefore, suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order Annexure P-8 passed by the trial Court is set aside. Application Annexure P-6 filed by the plaintiffs is allowed and Ishwar Singh, Kamla and Omi, mentioned in paragraph 8 of the application, are ordered to be added as defendants No. 3 to 5 to the suit, subject to payment of Rs. 10,000/- as costs precedent.