NARENDRA NATH DELUI Vs. VIVEKANANDA PARI

JUDGEMENT

(1.) THIS revisional application is directed against Order No. 155, dated 20th of May, 1992, passed by the learned assistant District Judge, 10th Court, Alipore in Title Suit No. 25 of 1983, whereby the learned Assistant District Judge allowed an application under order 1 rule 10 (2) of the Code of Civil Procedure, preferred on behalf of one alerani Dey and directed addition of her as a party to the suit, wherein the opposite parties nos. 1 to 3 are plaintiffs and the petitioners are defendants. The suit is one for partition and the claim of the plaintiff is based on derivation of title from the purchaser of 1 /8 (one eight) share of the suit property from alorani, who again claimed to be the grand daughter of the admitted original owner. 1/8 (one eighth) share is claimed to have devolved on Alerani as share of her mother as original owner by leaving eight legal heirs and successors. In the written statement, the defendant, who are petitioners before is, disputed the existence of Alorani and dented the fact that the original owner had any daughter by the name of Mangalamoyee, whom Alorani claimed as her mother. The learned trial Judge, as stated above, allowed the application made on behalf of Alorani.

(2.) BEFORE us, in support of the Revisional application, Mr. Roychowdhury has argued that the suit being one for of whatever interest and title she had in the suit property, the prayer for addition as a party made by her is misconceived and legally untenable. Secondly, Mr. Roychowdhury has argued that whatever interest Alorani might be having, is being adequately represented by the plaintiffs and it may be stated that she is appearing in the suit through the plaintiffs. Thirdly, it has been argued by Mr. Roychowdhury that, at any rate, Alorani may depose as a witness in support of the plaintiffs claim and her addition as a party is not warranted in view of the provisions of Order 1 rule 3 of the Code of Civil Procedure. Latsly, Mr. Roychowdhury has argued that the impugned order is not a speaking order. Mr. Mitra, appearing on behalf of Alorani, has contended that the impugned order is Justifiable on the basis of the ratio propounded toy the Supreme Court in the case of Razia Begum vs. Anwara Begum, reported in AIR 1958 (SC) 886, where it has been categorically laid down that in case of decision of a question of status, that affects generation and as such, a party interested in such a decision ought to be added as a party in the concerned proceeding. Mr. Dasgupta, appearing for opposite Party No. 3, has contended that there are authorities, indicating that even in a partition suit, the persons other than co-sharers sometimes are required to be added as parties and the has relied on a decision reported In AIR (1958) Calcutta 710.

(3.) UPON consideration of the respective submissions made by the appearing parties, we are no inclined to interfere with the order for the following reasons : that the order is a discretionary order and in view of the ratio propounded by the Honble Supreme Court in the Case of Razia Begum supra, the discretion appears to have been appropriately exercised by the learned trial judge. The petitioner may not be a necessary party but in the context of the defence raised, can be said to be very much a proper party, in whose presence the Ms ought to be decided. The other reason for which we are in favour of sustaining the order, is that there is no bar for the plaintiffs to pray for refund of the purchase money in the event occasion so arises and Court is empowered to grant such relied in terms of Order 7 rule of the Code of Civil Procedure. To make: the adjudication complete and effective and to avoid any multiplicity of proceeding in such a situation, the addition of party allowed by the impugned order, in our view, is just and proper. In this connection, we place reliance on the decision of the Privy Council in the case of Atmarem vs. Beni Prasad, reported in AIR (1935) Privy Council 185, where a reversioner having no direct immediate interest in the property, was allowed to do added by application of the principle of ex debate justice.