The plaintiff-respondents filed the suit being Suit No. 197 of 1992, which has been renumbered as Original Suit No. 410 of 2003, Naresh Kumar vs. Ranjeet Kumar and others, for partition of the properties belonging to the Joint Hindu Family. In the suit, Sri Madan Lal was defendant no.14, who is the father of the petitioner. In the aforesaid suit, the petitioner moved the application on 6th March, 2010, under Order 1, Rule 10 of the Code of Civil Procedure for his impleadment in the suit on the ground that he is the co-parcener of the Joint Hindu Family and is entitled for the share in the property in dispute. The said application has been rejected by the Trial court vide order dated 19.4.2010 and the revision against the said order has also been dismissed by the impugned order dated 9.12.2010.
The Trial court has held that the petitioner's father is defendant no.14 and on behalf of the father, the petitioner was doing Pairavi of the case and appearing in the court regularly. It is further observed that the petitioner is deriving his share through father, who is already party in the suit. The application has been moved at a belated stage. In the order, the court has referred some of the agreements entered into between the parties.
The revisional authority has held that in the suit, the petitioner appeared on behalf of his father, who was defendant no.14, on 10.5.2005, 26.11.2008, 23.12.2008, 7.1.2009, 24.2.2009, 7.3.2009, 1.4.2009, 10.4.2009, 23.4.2009, 7.7.2009, 15.7.2009 and 19.8.2009. The father of the petitioner has already filed his reply. The evidences have been closed and the case is listed for final hearing, therefore, the application moved by the petitioner, which is highly belated, is not acceptable.
Heard Sri S.K. Verma, Senior Advocate, assisted by Sri Siddhart Verma, learned counsel for the petitioner and Sri Rahul Sahai, appearing on behalf of the respondents.
Learned counsel for the petitioner submitted that the petitioner is co-parcener and is entitled for the share in the Joint Hindu Family property and, therefore, the petitioner is the necessary party. In case, if the petitioner will not be impleaded as a party, interest of the petitioner may be jeopardised. In support of the contention, he relied upon the decisions of the Apex Court in the cases of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotel Pvt. Ltd. and Ors., reported in 2010 (6) JT 537 and N.V. Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh, reported in AIR 1970 SC 14.
Learned counsel for the petitioner relied upon some of the paragraph of Mulla's Hindu Law 7th Edition wherein the concept of the term coparcenery has been dealt with. Some of the paragraphs on which the reliance is placed are referred hereinbelow :
"213. Hindu Coparcenary :
A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent (see S 218). The above propositions must be read in the light of what has been stated in the note at the top of this chapter.
To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or fathers' father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth. These propositions also must be read in the light of what has been stated in the note at the top of this chapter."
"214. Formation of Coparcenary :
(1)The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees continuing from and inclusive of such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins, etc. (2)A coparcenary is purely a creature of law; it cannot be created by act of parties, save in so far that by adoption a stranger may be introduced as a member thereof.
(3)No female can be a coparcener, although a female can be a member of a joint Hindu family (see S 217)."
"224. Character of father's and son's interest in ancestral property :
Under Mitakshara law, each son upon his birth, takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father, and, therefore, a transfer is allowed by law ( S 258 ), cannot affect the interest of the son in the property. However, the father has a special power of disposal of ancestral property for certain purposes specified in Sections 225, 226 and 295."
He submitted that it is not disputed in the counter affidavit that the petitioner is a co-parcener and without his impleadment the partition suit cannot be decreed. Reliance is placed on the decision of this Court in the case of Amrit Ram and others Vs. Gauri Shanker Singh, reported in 1983 All. L. J.-509.
It is further submitted that impleadment can be made at any time in the suit Reliance is placed on the decision of Madras High Court in the case of Shanmugham and others Vs. Saraswathi and others, reported in AIR 1997 Madras -226.
He further submitted that the father of the petitioner has opposed the impleadment of the petitioner and the courts below have unnecessarily referred to 1953 and 2003 settlements, which were never finalized and in which the defendant no. 14, the father of the petitioner, was not a party.
The question for consideration is whether the petitioner being coparcener to be impleaded in a suit of partition after 17 years particularly in a situation when his father was the party of the suit and he was doing pairvi of the case on behalf of the father since beginning.
In the case of N.V. Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh (Supra) it has been held by the apex Court that a Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu Coparcenary is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being.
In the case of Ramesh Hirachand Kundanlal Vs. Municipal Corporation of Greater Bombay and others, reported in (1992) 2 Supreme Court Cases- 524, the apex Court has held as follows:
"Para-6. Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.
Para-8. The case really turns on the true construction of the rule in particular the meaning of the words "whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit". The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.
Para-10. The power of the Court to add parties under Order 1 Rule 10, CPC, came up for consideration before this Court in Razia Begum. In that case it was pointed out that the courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it be the questions relating to movable or immovable property.
Para-14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated.
"The test is 'May the order for which the plaintiff is asking directly affect the intervenor in the enjoyment of his legal rights."
In the case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & others, reported in JT 2010 (6) SC-537, the apex Court held as follows :
"Para-12. Let us consider the scope and ambit of Order 1 of Rule 10 (2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import [1981 (1) SCC 80], reiterated the classic definition of 'discretion' by Lord Mansfield in R. v. Wilkes [ 1770 (98) ER 327], that 'discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, 'but legal and regular'. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule.
12.1.If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10 (2) of Order 1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.
12.2.If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession.
12.3.If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.
12.4.If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fide etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if 'D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of 'P' representing that he is the co-owner with half share, and 'P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that 'D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave upon the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement / contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party."
In the case of Shanmugham and others Vs. Saraswathi and others (Supra), the Madras High Court held as follows :
"Para-9. There is no merit in the contentions. The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers. See A. Ramachandra Pillai v. Valliammal, (1987) 100 Mad L.W. 486."
Learned counsel for the respondents relied upon the orders of the courts below.
Learned counsel for the respondents submitted that the suit is of 1992. This Court in Civil Misc. Writ Petition No. 57 of 2008, vide order dated 24th January, 2008, has directed the Trial court to conclude the proceeding of the suit within one year. The evidences have been closed and the suit is at the stage of final hearing. The father of the petitioner, Sri Madan Lal, who is still alive is defendant no.14 in the suit. The petitioner, right from beginning, was regularly attending the court and contesting the suit on behalf of his father and, therefore, filing of the impleadment application, almost after 20 years, is malafide and is just with the intention to delay the proceeding. He submitted that there are two more brothers of the petitioner, who could possibly file the impleadment application subsequently to delay the proceeding. No explanation for the delay has been given. He further submitted that the petitioner is entitled for a share through his father and whenever there will be a partition in the suit, through the father, the right of share can be claimed. Both the courts below have rightly rejected the impleadment application. Reliance has been placed on the decisions in the cases of Mt. Bindru v. Sada Ram and others, reported in 1960 J & K 62, Samadh Baba Mauzpuri and another vs. Sukhdev Puri and another, reported in AIR 1986 Punjab and Haryana 250, Asha Rani v. Laljit and another, reported in 1994(1) CCC 166 (P & H), DSM Degree College, Kanth, Moradabad v. Additional District Judge, Court No.4, Moradabad and another and Mohd. Farooq v. District Judge, Allahabad and others, reported in AIR 1993 Allahabad 8.
I have considered rival submissions and perused the impugned orders.
It would be appropriate to refer Order 1, Rule 10 of the Code of Civil Procedure, which reads as follows:-
"10. Suit in name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bna fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such term as the Court thinks just.
(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent."
In the case of Mt. Bindru v. Sada Ram and others (Supra), the Jammu & Kashmir High Court has held that someone, who approaches the court at a very belated stage and when the matter is at the verge of final disposal, need not be impleaded as party to the proceeding. The bonafide of the applicant is a material consideration and is to be taken into account.
The Punjab & Haryana High Court in the case of Samadh Baba Mauzpuri and another vs. Sukhdev Puri and another (Supra) has held that the impleadment application filed with ulterior objective is liable to be rejected. Similar view has been taken by the same High Court in the latter decision also in the case of Asha Rani v. Laljit and another (Supra).
This Court in the case of DSM Degree College, Kanth, Moradabad v. Additional District Judge, Court No.4, Moradabad and another (Supra) has also reiterated the view taken by the Jammu & Kashmir High Court.
The question of addition of parties under Rule 10(2), Order 1 of the CPC is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of each case. What is to be seen is that whether the court below has exercised its discretion judicially or not.
The suit is of 1992. This Court vide order dated 24th January, 2008, in Writ Petition No. 57 of 2008, has expedited disposal of the suit and directed the Trial court to conclude the proceeding within one year. The evidences have been closed and the case is fixed for hearing. The father of the petitioner, Madan Lal, who is still alive is a defendant in the suit. The petitioner was regularly doing Pairavi of the case on behalf of his father since long. He is entitled for his right to get the share through the father. No explanation has been given for the delay in filing the impleadment application. Therefore, the application moved at such a belated stage is not bonafide. In the circumstances, I do not find any error in the orders rejecting the impleadment application, which is highly belated.
On the facts and circumstances, stated above, I am of the view that both the courts below have exercised the discretion judicially. There is no error in the impugned orders. In the result, the writ petition fails and is dismissed.
Order Date :- 7.7.2011 bgs/