INDRANIL SANJAYBHAI RAJGURU Vs. SHANTILAL NAGJIBHAI RAJYAGURU

JUDGEMENT

(1.) THIS petition arises out of the order passed below Exhibit328 in Special Civil Suit No. 46 of 1998, whereby the petitioners were ordered to be joined as party under Order 1, Rule X of the Code of Civil Procedure.

(2.) IT is contended by the learned counsel for the petitioners that impleadment was ordered without there being averments, in the body of the plaint concerning the suit property which was mentioned in the schedule Item No. 4 of the plaint. It is also argued that in absence of the pleadings, the Trial Court had no jurisdiction to exercise the powers under Order 1, Rule X of the Code of Civil Procedure. It is also argued that even if there were averments concerning the suit property in the plaint, by mere presence of the petitioners in absence of other predecessors who held the title to the land in question since 1968 onwards, passing of the effective decree was not possible. It is also argued that on the date of suit for partition the plaintiffs were not the owners of the land mentioned at Item No. 4 in the schedule and, therefore, there was no question of partitioning the land in question and as such there will be no question of granting of relief either in presence of the petitioners or in his absence. It was therefore, contended that the petitioners were neither necessary party nor the proper party.

(3.) IT is also argued that even in absence of five predecessors in title of the petitioners the dispute as regard the partition can be addressed effectually in presence of the petitioners and his presence has become very significant and necessary in view of the challenge to the sale deed in his favour. It is argued that under Order 1, Rule X only two aspects are required to be kept in mind being whether the presence of a party is necessary and whether in absence of the party sought to be joined, the dispute can be effectually determined or not. In his submission, the respondents plaintiffs had discharged their duty of bringing to the notice of the Court that the petitioners would be party affected and the Court having exercised its discretion, no case for interference under Article 227 of the Constitution was made out.