LEELABAI Vs. LOTTAN

JUDGEMENT

(1.) THE facts of the case are that the respondent Lotan filed a suit for partition against the respondents Balak Das, Mohanlal, Ram Das. The suit was contested by the parties and ultimately a decree for partition was passed by the trial Court. The decree was affirmed in appeal and second appeal. The petitioner Leelabai and respondent Savitri Bai and Sushila who are the real sisters of respondents No. 1,2,3 and4 were not impleaded as party in previous suit. After decision in the civil suit, petitioner Leela Bai filed a suit before Civil Judge, Class II in which several reliefs are claimed; relief (A) is, that the decree passed in previous suit is null and void and petitioner is entitled for partition for one seventh share, relief (B) is, that permanent injunction be issued against the Defendant to execute the decree passed in previous suit. Apart from the aforesaid reliefs, petitioner has claimed relief of partition to the extent of her share of one seventh in the property and for mesne profit. In the civil suit respondent No. 1 Lotan filed an application under Order 40 Rule 1 CPC, the trial Court vide order dt. 28.7.2003 rejected the aforesaid application but directed that the relief clause (A) and (B) are not necessary in the suit and directed for deletion of the aforesaid prayer-clause in the plaint. Aggrieved by this part of the order, plaintiff has filed this petition.

(2.) LEARNED counsel for the petitioner submits that for complete adjudication of the case, it is necessary that previous judgment and decree passed without impleading the petitioner, may be declared as null and void and the permanent injunction be issued against the respondents restraining them to execute the said decree of partition. These reliefs may be considered by the trial Court at the time of the decision but the reliefs has been directed to be deleted by the trial Court, while deciding the application under Order 40 Rule 1 CPC. The aforesaid order is without jurisdiction and may be quashed.

(3.) CONSIDERING the rival contention of the parties, it is not in dispute that in previous round of litigation, petitioner and respondent No. 5 and 6 who are real sister of respondent No. 1 to 4 were not impleaded as party. Property in respect of which partition sought by the parties belong to Nanhelal, father of the petitioner. In the previous round of litigation, petitioner and respondent No. 5 and 6 were necessary party and respondent No. 1 who filed previous suit ought to have impleaded petitioner and respondent No. 5 and 6 as party. It was the duty of the plaintiff to implead all necessary party in the case and if the petitioner inspite of knowledge has not made an application for impleadment of the party, then the petitioner cannot be said to be at fault. It was the duty of the plaintiff to implead all the necessary party in the suit. In the aforesaid circumstances, if the petitioner in the plaint has sought relief for declaration that previous judgment and decree is null and void to the extent of petitioner's share, and in this regard permanent injunction is sought, then it cannot be said, at this stage, that the aforesaid relief's are not necessary and may be deleted. The parties are contesting the matter and trial Court while deciding the case finally shall consider what relief may be granted to the petitioner. But at this stage such reliefs cannot be deleted. Consequently, the aforesaid part of the order by which the trial Court has directed for the deletion of the relief clause (A) and (B) is hereby quashed. The trial Court shall be free to consider it at the time of final decision of the suit that the petitioner is entitled for the aforesaid relief or not.