RADHESHYAM Vs. SURESH CHAND

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India is directed against the interlocutory order dated 23.3.2015, whereby the application under Order I rule 10 CPC filed by the petitioner/plaintiff for adding the parties has been rejected.

(2.) LEARNED counsel for the petitioner submits that the trial Court has committed grave illegality and jurisdictional error while rejecting the application. It is contended that the plaintiff and defendants are real brothers. Plaintiff has filed a suit tor the relief inter alia that he be declared 1/4th owner of the suit property and for permanent injunction against the defendants not to deal with the suit property without seeking partition thereon. In response thereto defendants have filed written statement and raised an objection that the family tree explained by the plaintiff is not factually correct as Late Brajlal did not have only four sons, but also have three daughters. As three daughters have not been made parties, the suit suffers from the vice of non -joinder of necessary party and in absence thereof, no relief of the nature claimed in the suit can be granted. On such objection being raised, plaintiff filed an application under Order I rule 10 CPC for adding sisters as parties to the suit. Therefore, it is submitted that application was bonafide and, as a matter of fact, on an objection being raised by the defendants, the said application was filed. Even otherwise, the application was necessary, as looking to the nature of relief in absence of other heirs, plaintiff would have suffered dismissal of the suit for non -joinder of necessary parties. Therefore, the trial Court ought to have allowed the amendment to do complete justice amongst the parties. It is submitted that the reasons and justifications given by the trial Court that despite knowledge of sisters being also heirs of Late Brajlal, plaintiff had chosen not to add them as parties and since trial has commenced, there was no justification for allowing the aforesaid application, cannot be sustained in the eyes of law. Therefore, it is prayed that the order be set aside and petitioner/ plaintiff be permitted to add the remaining LRs of Late Brajlal in the suit.

(3.) PER contra, learned counsel for respondents/defendants though at the first instance opposed the petition and submitted that trial Court has not committed any error of law or jurisdictional error while rejecting the application, as the petitioner/plaintiff had full knowledge about the sisters and, therefore, in all fairness ought to have added them as parties at the time of filing of the suit. It is submitted that the aforesaid application has been filed only to delay the trial.