DAYAWANTI AND ANOTHER Vs. SHEO NARAIN

JUDGEMENT

(1.) Present petition has been filed for setting aside the impugned order dated 10.11.2015 (Annexure P-2) passed by the Civil Judge (Junior Division), Charkhi Dadri, whereby the application of the petitioners-plaintiffs under Order 1, Rule 10 and Order 6, Rule 17 of the Code of Civil Procedure was rejected.

(2.) Petitioners-Plaintiffs had filed a suit (Annexure P-1) for declaration on the ground that the property measuring 109 kanal 6 marla given in the headnote of the plaint is joint Hindu family coparcener property and the petitioners-plaintiffs are having their birthright which is rd share i.e 72 kanal 16 marla and they are entitled to get separate possession by partition. Further prayer was made for permanent injunction restraining the respondent-defendant to alienate in the form of sale, gift, mortgage or by any other means of the property in dispute. During the pendency of the suit, the respondent-defendant Sheo Narain had sold out some part of the suit property to vendees namely, Krishan Devi, Dharmal Devi and Nirmala Devi vide registered sale deed no. 3279 dated 27.10.2011. Accordingly an application under Order 1, Rule 10 and Order 6, Rule 17 of the Code of Civil Procedure praying for amending the plaint and for impleading the aforesaid vendees as defendants in the present suit was made. The application has been dismissed by the trial Court by making reference to the Supreme Court judgment in the case of Sanjay Verma v. Manik Roy and others, 2007 2 LJR 565, wherein a suit for specific performance of a contract has been filed by the plaintiff against one Rajeshwari Devi. A further declaration was sought to the effect that defendant no. 1 had no right to execute four sale deeds in favour of defendants no. 2, 3, 4 and 5. During the pendency of suit, a temporary injunction was granted in favour of the appellant. After the order of injunction was passed, some transfers were made by the defendants. The subsequent purchasers filed an application in terms of Order 1, Rule 10 (2) CPC for impleadment to contest the suit and to permit them to file written statement. The trial Court rejected the prayer for implement by holding that the transfer was pendente lite and was clearly hit by Section 52 of the Transfer of Property Act, 1882. Against the order of the trial Court, a writ petition was filed before the High Court which was allowed holding that the respondents' vendors were not parties to the suit and there was nobody to represent and safeguard their interest and therefore they are required to be added as parties in the suit for the ends of justice. Order of the High Court was challenged in an SLP before the Supreme Court which was allowed and it was observed in paragraph 12 as under:

(3.) However, in the above said case, Hon'ble the Supreme Court was not dealing with the case where a co-share had filed a suit for partition. In the case of Rupesh Singh v. Pitamber Singh and others,2013 5 RCR(Civ) 208, whereby a revision petition was filed assailing the order dated 5.3.2012 (Annexure P-6) passed by the Civil Judge (Senior Division) SAS Nagar, Mohali allowing application under Order 1, Rule 10 (2) moved by legal heir of one Bakshish Singh for impleading her as party to the suit along with all other Class I heirs of deceased Bakshshish Singh. In this case, inheritance of Bakshshish Singh was in dispute in the suit. Plaintiffs have set up Will dated 13.10.1989, whereas defendant no. 1 has set up Wills dated 8.10.1993 and 8.6.1994. The applicant two other daughters and widow of Bakhshish Singh were his class I heirs along with plaintiffs and defendant no. 1 being his sons. It was observed by the co-ordinate Bench of this Court that inheritance of Bakshshish Singh cannot be effectually and completely adjudicated upon in the absence and behind the back of the three daughters and widow of Bakshshish Singh. They are, therefore, not only proper but necessary parties to the suit. Any adjudication of the Wills set up by plaintiffs and defendant no. 1 in the suit without impleading the daughters and widow of Bakshish Singh would be an exercise in futility. The revision petition was dismissed in limine by holding that mere delay in filing of application is not sufficient to dismiss the said application in view of specific provision contained in Order 1, Rule 10 (2) CPC requiring the Court to add any such person as party to the suit at any stage of the proceedings.