Sri Nandal Sahu vs Hiralal Sahu

Gautam Kumar Choudhary, J

Petitioner is the defendant and the instant petition under Article 227 of the Constitution of India is filed for setting aside the order dated 27.02.2025 passed in O.S. No.478 of 2019, whereby and whereunder a petition under Order I Rule 10 read with Section 151 of the CPC, has been dismissed.

Opposite party filed Partition Suit No.153 of 2009 presently numbered as O.S. No.478 of 2019 in which the present petitioner appeared and filed written statement on 08.04.2011.

On 28.01.2025, petitioner filed a petition to implead legal heirs of his father Late Sita Ram Sahu and for inclusion of other joint property left by his father. This petition has been rejected by the detailed and speaking order inter alia on the ground that he had nowhere taken plea of non-joinder or miss-joinder of the necessary party in his written statement. Further, after defendant’s evidence was closed and the record was running for argument, he had filed a petition on 18.11.2024 to complete his evidence by next two dates.

It is argued by the learned counsel on behalf of petitioner that the proposed legal heirs are necessary party and the entire joint family property has not been included in the schedule of plaint.

After hearing the counsel on behalf of petitioner, it is apparent that no plea of non-joinder of necessary party was taken in the written statement. This plea has been taken 14 years after filing of the WS by filing a petition under Order I Rule 10 of the CPC, seeking impleadment of a third party. The said third party, at no stage moved the trial Court for being impleaded in the suit. When the case was at the stage of final argument, instant petition has been pressed into service for impleadment of other parties first time.

Petitioner further goes a step forward and seeks an amendment to incorporate certain property in the Schedule of the joint family without filing a petition for amendment of the written statement under Order VI Rule 17 of the CPC by taking recourse to Section 151 of the CPC. The law is settled that inherent power of a Court cannot be used when there is a specific statutory provision.

Petition on the face of it, is designed to delay and scuttle the suit which is at its final stage of argument. Impleadment and amendment will have a consequent effect of de novo trial. This is a classic example in which the litigants adopt methods to deliberately delay the adjudicatory process. I do not find any infirmity in the impugned order.

Civil Miscellaneous Petition stands dismissed with cost. Cost assessed to Rs.10,000/- (Rupees Ten Thousand) to be payable to the Plaintiff in the trial Court. Pending Interlocutory Application, if any, is disposed of.