Mahadeo Sao and Others vs Jagarnath Sao @ Gudan Sao and Others

P.P. Bhatt, J.—Petitioners by way of filing the present writ petition under Article 227 of the Constitution of India have prayed for issuance of an appropriate writ/order/direction for quashing and setting aside of the order dated 29.7.2009 passed by the learned Sub Judge I, Chatra in Partition Suit No. 28/2001, whereby the learned court-below refused to allow the petition filed by the petitioners under Order-I Rule- 10 of the CPC. Heard the learned counsel for the petitioners as well as respondents and perused the impugned order as well as other materials placed on record.

It appears that the application filed under Order-I Rule- 10 of the CPC has been rejected mainly on the ground of inordinate delay in filing of the said application, as the said application was moved after recording of evidence when the matter was kept for argument. It appears that petitioners/plaintiffs wanted to implead the real sisters as parties in a partition suit which was filed in the year 2001. It appears that the written statement was filed in the year 2003 and plea was raised by the defendants regarding non-joinder of the parties. Likewise, questions were also asked during cross examination by the defendants in the year 2006 to that effect. However, the plaintiffs did not move any application for impleadment and at the fag end of the trial, such application has been moved. Therefore, the learned court-below has rightly observed that there is gross negligence on the part of the plaintiffs.

In these context provision contained under Order-1 Rule- 10(2) is required to be considered. Order-1 Rule 10(2) of the CPC provides as under:

(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.

In view of above provision the court may at any stage of the proceedings allow such request. Looking to the nature of suit presence of sisters was essential for effectual and complete adjudication and settle all the questions involved in the suit and therefore, in the interest of justice the powers given under Order-1 Rule 10(2) were required to be exercised by the court-below though such application was submitted at a belated stage so as to avoid multiplicity of the proceedings. The factum of their being necessary and proper party has been admitted by the defendant/respondent also.

Learned counsel for the petitioners has referred to and relied upon the decisions of this Court in the cases of Smt. Uma Devi Vs. Ram Kumar Mehta and Others, and Prabhat Kumar Shah and Prakash Kumar Shah Vs. Anand Kumar Modi, .

Ratio laid down in the aforesaid two decisions is applicable to the facts and circumstances of the present case and the application filed under Order-I Rule- 10 of the CPC is required to be allowed in view of the above-referred two decisions. However, looking to the conduct of the plaintiff in preferring such application at belated stage, the cost is required to be imposed upon the petitioner/plaintiff. Therefore, in the interest of justice, the impugned order deserves to be set aside by imposing cost of Rs. 2100/- on the petitioners. Accordingly, the impugned order is ordered to be set aside. With the aforesaid observation and direction, this writ petition stands disposed of.