Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 3132 of 2014 --- Sabitri Devi --- ---- Petitioner Versus 1. Shyam Sunder Pandey 2. Pancha Devi 3. Shankar Pandey 4. Murli Pandey 5. Nakul Pandey 6. Madan Pandey 7. (i) Rina Devi @ Sudama Devi (ii) Ranjit Pandey (iii) Susmi Devi (iv) Bobi Kumari (v) Gulabi Kumari 8. Most. Jayanti Devi 9. Rajendra Pandey --- --- Respondents --- CORAM:The Hon’ble Mr. Justice Aparesh Kumar Singh For the Petitioner: Mr. Ramawatar Sharma, Advocate For the Resp Nos. 1,2,7&8: Mr. Sidhartha Roy, Advocate For the Resp Nos. 3,4&9: M/s Sanjay Prasad, Kamdeo Pandey, Advocate --- 06/ 10.05.2017 Heard counsel for the petitioner and the Respondents.
2. This petitioner earlier was unsuccessful in her impleadment in Partition Suit No. 106/2003 pending before the Court of Civil Judge (Senior Division)-III, Giridih, as per order dated 26.06.2009 passed on her petition dated 21.09.2005. Perusal of order dated 26.06.2009 (Annexure-B to I.A. No. 1618/2017 filed by the Respondents 1,2 and
8) reveals that the learned Court allowed impleadment of Manohar Pandey and Chandrika Devi, legal heirs of Khubi Pandey in the array of defendants. Plea of this petitioner was not accepted. She was allowed opportunity to furnish genealogy given in the Land Acquisition Office or any other cogent document corroborating the fact that Bhusan Devi and Sabitri Devi are heirs of the deceased Sumitra Devi.
3. Petitioner thereafter preferred second petition on 02.09.2013 under Order 1 Rule 10(2) of Civil Procedure Code seeking her impleadment as a necessary party claiming herself to be the granddaughter of Khubi Pandey born out of Sumitra Devi. By the impugned order dated 29.03.2014, learned Civil Judge (Senior Division)-III, 2 Giridih rejected the same as being not maintainable as no such succession certificate or any documentary evidence were produced in support of her claim. Moreover, in the petition dated 21.09.2005, the name of husband of the petitioner was shown as late Durga Pandey while in the instant petition, name of her husband was shown as Jagarnath Pandey. Petitioner admittedly had not been able to produce the certified copy of genealogical table obtained from the office of the Land Acquisition Officer, as per leave granted in the earlier order dated 26.06.2009. Petitioner being aggrieved, approached this Court.
4. According to the petitioner, genealogical table has now been obtained from the office of Land Acquisition Officer, Giridih in case no. 60/2002-03. It is an affidavit furnished by the petitioner herself in the land acquisition case, according to which, she is a granddaughter of Khubi Pandey through his daughter Sumitra Devi.
5. Learned counsel for the petitioner submits that the petitioner being the granddaughter of one of the co-sharer, has a definite share in the property sought to be partitioned in the suit no. 106/2003. Therefore, ignoring such technical deficiency, petitioner should be impleaded in the partition suit as her presence is necessary for effective adjudication of the issues involved therein.
6. Learned counsel for the Respondent Nos. 1,2,7 and 8 have seriously opposed the prayer. Learned counsel for the Respondent Nos. 3, 4 and 9 have supported the petitioner's case. Written statement filed by the defendant nos. 1,2 and 7 (Annexure-
3) has been relied upon by the petitioner also where at para-10, it is stated that Triloki Pandey @ Loki Pandey died issueless while Khubi Pandey died 10-15 years ago leaving behind two daughter Sumitra Devi and Chandrika Devi. Petitioner claims herself to be the daughter of Sumitra Devi. According to the petitioner, Chandrika Devi is still alive and Manohar Pandey is her only son. Both of whom have been impleaded as defendants in the suit. 3 7. Perusal of the impugned order shows that issues have been settled long ago and case was running for defendants' evidence as on 29.03.2014. According to the plaintiffs / Respondents herein, the suit is at the stage of argument. Order 1 Rule 10 of Civil Procedure Code reads as under:
“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 bona 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 terms 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 questions 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. (4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877), section 22], the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”
8. Perusal of the provisions show that discretion is conferred on the Court at any stage of the proceeding either upon or without the application of either party and on such terms as may appear to the Court to be just to order the name of any party either to be deleted or to be joined whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Learned Trial Court in the earlier order dated 26.06.2009 was of the opinion on the basis of records and written statement of defendants 1, 2 and 7 that Khubi Pandey died 10-15 years back leaving 4. behind two daughters Sumitra Devi and Chandrika Devi. Chandrika Devi had a son namely Manohar Pandey while there was no mention of legal heirs of Sumitra Devi. In separate petition dated 24.11.2008, the name of legal heirs of Sumitra Devi was mentioned as Bhushan Devi and Sabitri Devi. Therefore, the petitioner was allowed to adduce such genealogical table or any other cogent document corroborating the fact that Bhushan Devi and Sabitri Devi are the heirs of the deceased Sumitra Devi. In the present petition, petitioner has set up a case that Bhushan Devi died issueless.
9. From perusal of the impugned order, the reasoning recorded therein cannot be said to suffer from any errors in fact or in law. However, petitioner now before this Court has produced a certified copy obtained from the office of Land Acquisition Officer, Giridih in case no. 60/2002-03 (Annexure-4) which it was required to produce in support of her claim, by earlier order dated 26.06.2009 passed on her first petition for impleadment dated 21.09.2005. The matter therefore requires reconsideration by the learned Trial Court on the basis of a fresh document produced by the petitioner. Accordingly, it is remanded to the learned Trial Court to take a fresh decision in the matter after due opportunity to the parties. In view of the matter being remanded, the impugned order dated 29.03.2014 should not come into the way of learned Trial Court. It is also observed that in case plea of the petitioner for impleadment is accepted, the Court may, in exercise of its powers under Order 1 Rule 10 (2) of Civil Procedure Code, allow such impleadment on such terms and conditions, as may appear to be just and also with an objective to ensure that the proceedings of the partition suit itself is not delayed as it is pending for 14 years by now. Writ petition is accordingly disposed of in the aforesaid terms. Interim order dated 18.07.2016 stands vacated. I.A. No. 1618/2017 also stands disposed of. (Aparesh Kumar Singh, J) Ranjeet/