Radheyshyam Khandelwal And Ors vs Smt. Nenu Devi And Ors

The present writ petition under Article 227 of the Constitution of India emanates from the order dated 17.7.2018, passed by the learned District Judge, Balotra, District Barmer (hereinafter referred to as the trial court), whereby petitioners' application seeking deletion of their names from the array of defendants has been rejected.

The facts apropos the present writ petition are that the plaintiffs-respondents Nos. 1 to 3 herein had filed the suit for partition and recovery of their share of rent (mesne profit) received by the defendant no.3 qua the undivided property. In the suit so instituted, the plaintiffs have roped-in the petitioners as defendant no.16 and 17. It is pertinent that the present petitioners, being defendants nos. 16 and 17 had filed their written statement way back on 29.4.2014 and based on the pleadings of the rival parties, the issues had long been framed.

The petitioners proceeded to move an application under Order I Rule 10 (2) of the Code of Civil Procedure on 27.10.2017 inter alia contending that they are neither necessary nor proper party in the subject suit for partition and hence, their names be deleted from the array of the defendants.

The petitioners' aforesaid application dated 27.10.2017 has been rejected by the trial court, vide its order dated 17.7.2018, inter alia observing that based on the pleadings of the parties, issue no.5 has already been framed in this regard and the same shall be decided at the final adjudication of the suit and thus the application was misconceived.

Mr. Hedau learned counsel for the petitioner calling the order dated 17.7.2018 passed by the trial court in question, contended that the trial court has seriously erred in rejecting the petitioners' application solely in the light of issue no.5 framed by the trial court. He contended that in the suit for partition, the petitioners being purported tenants are neither proper nor necessary parties and that they cannot be dragged in the suit for partition instituted by the plaintiff.

I have heard learned counsel for the petitioners and perused the material available on record.

Before dilating upon the submissions made by Mr. Hedau, suffice it to note that the petitioners having filed the written statement on 29.4.2014, have been contesting the suit on all counts, including the ground of their wrongful arrayal in the suit proceedings. Based on the petitioners' such stands, an issue in the form of issue no.5 has already been framed, which reads thus:

"5 क्या वादीगण ने प्रतिवादी संख्या 16 व 17 को गलत पक्षकार बनया है"

In the face of issue no.5, which has been framed on the basis of the pleadings of the petitioners, this Court is of the considered opinion that the trial court was justified in rejecting the petitioners' application, which had been filed after about four years of filing of the written statement. According to this Court, the petitioners having joined the issues on merit, cannot file an application for deletion of their names after four years, particularly when, the issue in this regard had already been framed.

As far as the other submission of Mr. Hedau is concerned that in a suit for partition, the petitioners are not necessary party, this Court prima-facie is of the opinion that any observation made by this Court, at this stage, will prejudice right of either parties, particularly in relation to issue no.5, already framed by the court below.

In view of the discussion aforesaid, I do not find any infirmity or irregularity in the order dated 17.7.2018, for which the writ petition is dismissed.