Rahul Verma vs Nareshdevi and Others

Rohit Arya, J.—This writ petition under Article 227 of the Constitution of India is directed against the order dated 13/2/2015 passed by the Fourth Additional District Judge, Morena in case No. 8-A/13. Petitioner''s application under Order I Rule 10 CPC has been rejected.

Facts necessary for disposal of this writ petition are to the effect that the plaintiff has filed a suit for declaration and permanent injunction claiming relief of declaration in respect of suit property described in schedule-I and II with red ink of her ownership and possession with further relief that the suit property is not that of defendants or joint family property on the premise that partition was effected amongst the father-in-law of plaintiff and defendants (his sons) in the past and thereafter all the defendants are in possession of respective shares forming their own smaller Hindu Undivided Family. The suit property is purchased by the plaintiff out of her own funds by way of registered sale deeds dated 16/9/1982, 24/10/1981 and 5/11/1981 and accordingly, plaintiff''s name has been mutated in the revenue record. The suit property is self acquired property of the plaintiff and not the ancestral property.

Defendant no.2 has filed written statement and admitted that after partition effected during the lifetime of his father, all the three brothers had separated and are in possession of their respective shares and that the suit property is the self acquired property of plaintiff.

The applicant, who is the son of defendant no.2, has filed an application under Order I Rule 10 CPC alleging that the suit property is the ancestral property and not purchased by the plaintiff out of her own funds and, therefore, he may be added as a party to the suit. The trial court by a detailed order has rejected the application.

Learned senior counsel submits that the trial court ought to have allowed the application in view of the fact that the petitioner is son of defendant no.2 and even if defendant no.2 has filed written statement that partition was effected amongst his brothers, father and mother in the past and all the brothers had started living separately, which according to him is incorrect, the suit property being ancestral property he has share therein and, therefore, he is a necessary party for complete adjudication of the dispute.

Law as regards scope of order I Rule 10 CPC is well settled: judgment rendered by Hon''ble Apex Court in Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, referred to. Relevant paras thereof read as under:-

"22. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.

This Court in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, , reiterated the classic definition of ''discretion'' by Lord Mansfield in R. vs. Wilkes - 1770 (98) ER 327, that ''discretion''

"when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ''but legal and regular''." 7. Having perused the impugned order, it is clear that the plaintiff has filed a suit for declaration and permanent injunction in relation to certain property claiming the same to be her self acquired property by virtue of sale deeds dated 16/9/1982, 24/10/1981 and 5/11/1981. As per plaint averments, partition amongst the defendants and their father had already taken place in the past and all the three brothers have been living separately. The fact of partition is accepted by defendant no.2 and also that all the three brothers after death of their father are living separately. In view of such circumstances, looking to the pleadings on record, the trial court was justified having rejected the application filed by applicant under Order I Rule 10 CPC as the lis between the parties can be decided without adding the applicant as party to the suit. The applicant not being a party to the aforesaid suit shall certainly not be bound by the judgment rendered therein.

At this stage, learned senior counsel, submits that he wants to file a separate suit and liberty may be given to move an application for analogous hearing of the suit with the present suit.

As a matter of fact, no permission is required from this Court. Petitioner is always at liberty to take recourse to law for ventilation of his grievance including filing of such application. This Court hopes and trusts that in such eventuality the court below shall deal with the matter in accordance with law on its own merits.

With the aforesaid, writ petition stands dismissed.