Judgment:
Manik Mohan Sarkar, J.
1. This is an application under Article 227 of the Constitution of India. This application has been directed against the order No. 55 dated 11.07.2006 passed by the learned 1st Assistant District Judge at Barasat in title Suit No. 383 of 1994.
2. Petitioners' case is that Mrityunjoy Ghosh & others, opposite parties in the present application filed Title Suit No. 383 of 1994 being a suit for partition and for declaration that the ex parte decree dated 08.09.1982 followed by final decree dated 03.11.1992 in Title Suit No. 127 of 1997, as collusive, fraudulent, null and void, inoperative and not binding upon them. There were many co-sharers/parties including the plaintiffs totally numbering 23 persons in that suit before the learned 1st Assistant District Judge, Barasat. The plaintiff No. 8 in the suit, Gourrani Ghosh and the plaintiff No. 9 Nabanita Ghosh died and the present opposite party No. 1 & others filed application under Order 22 Rule 9 of the Code of Civil Procedure in Misc. Case No. 34 of 2006 for setting aside the abatement order since no step for substitution of deceased Gourirani Ghosh and Nabanita Ghosh could be taken within the prescribed period as they had no knowledge about the said date. Learned Civil Judge (Sr. Division) 1st Court, Barasat rejected the said application for setting aside the abatement with the observation that on the death of Gourirani Ghosh and Nabanita Ghosh, all their legal heirs were not impleaded in the said application for setting aside the order of abatement and consequent substitution of the legal heirs and representatives of deceased plaintiff No. 10 Gourirani Ghosh and plaintiff No. 9 - Nabanita Ghosh and also no notice upon the legal heirs of such deceased plaintiffs was served. Subsequent to the said rejection, opposite party No. 1 - Mrityunjoy Ghosh and other opposite parties filed another application under Order 1 Rule 10(2) of the Code of Civil Procedure for impleading the legal heirs of the said plaintiff Nos. 10 and 9 before the learned 1st Assistant District Judge, Barasat and the learned Judge allowed the said application in his Order No. 55 dated 11.7.2006, after hearing of the respective parties and that the present petitioners have stated that the Title Suit 383 of 1994 was not a suit for partition and claimed that the suit was abated and no application under Order 1 Rule 10(2) of the Code lie.
3. Mr. S.P. Roy Chowdhury, learned Senior Advocate for the petitioners submitted that it is nobody's denial that the Title Suit No. 383 of 1994 abated as per statutory provision of the Code since no step was taken for the substitution of the deceased plaintiff Nos. 10 and 9 within the statutory period as provided under Order 22 Rule 4 of the Code. It is further submitted by Mr. Roy Chowdhury that though the plaintiffs in that suit Mrityunjoy Ghosh and Ors. filed application under Order 22 Rule 9 for setting aside the order of abatement and prayed for substitution of the legal heirs and representatives of deceased Gourirani Ghosh & Nabanita Ghosh the said application also was rejected by the learned Trial Judge and abatement order prevailed.
4. It is submitted by Mr. Roy Chowdhury that since there had been abatement of the suit and since the application for setting aside the abatement order was also rejected by the learned Court below and since that order has not been challenged before any higher forum, no subsequent application under Order 1 Rule 10(2) of the Code can be availed of to implead the said legal heirs and representatives of the deceased plaintiff No. 10 Gourirani Ghosh and plaintiff No. 9 Nabanita Ghosh in a round about way since the law does not permit the same.
5. In this context, Mr. Roy Chowdhury on relying upon a decision of the Court reported in 82 CWN 661 has referred to the view of this Hon'ble Court in the said judgment in the following lines:
The Court did not find any sufficient reason for setting aside the abatement caused by the deaths of she aforesaid parties in rejecting the application for substitution after setting aside the abatement. If the plaintiffs are now permitted to bring on record the legal representatives of the deceased persons on the fact of such rejection in this suit, it will not be a proper or fair exercise of the jurisdiction but an exercise of jurisdiction with material irregularity on the part of the Court to allow such application in exercise of its power either under Section 151 of the Code of Civil Procedure or under Order 1 Rule 10(2) of the Code of Civil Procedure. Further there may be serious questions of limitation involve in respect of the claims for declaration as made in the suit. I am accordingly of the opinion that in such circumstances when once the application for substitution after setting aside abatement caused by the death of some parties in a suit is rejected on merits, the plaintiff will not be permitted to circumvent the position caused by operation of law to add them as parties by invoking the aid of Order 1 Rule 10(2) of the Code of Civil Procedure or of Section 151 of the Code.
6. Having reliance upon the said findings of the Hon'ble Court in the said decision, Mr. Roy Chowdhury submitted that since the application of the plaintiff in the said suit for setting aside the abatement was not considered by the learned Trial Judge even after considering the submissions made on behalf of the respective parties, specifically of the plaintiff therein, it can never be stated that a proper and fair exercise of the jurisdiction has been made by the learned Trial Judge who has exercised jurisdiction with material irregularity in allowing a subsequent application under Order I Rule 10(2) of the Code or in exercise of the provision made under Section 151 of the Code of Civil Procedure.
7. Mr. Roy Chowdhury concluded with the submissions that the order passed by the learned Trial Judge on the application under Order 1 Rule 10(2) of the Code on a subsequent application by the plaintiff cannot be sustained as being opposed to the provision of law in that context and since the learned Court has wrongly exercised his jurisdiction in allowing such application, that order cannot be sustained and should be set aside under the provision in that respect made in the present application.
8. Mr. Shyamal Das, learned Advocate for the opposite party No. 1 submitted that the suit before the learned Trial Judge was one for partition of the joint properties after setting aside the earlier ex parte preliminary decree followed by the final decree thereon and stated that in respect of the suit properties of the parties having shares in the suit properties are standing on the same footing and the parties placed in the defendants' list, also stand in the capacity of the plaintiff since everyone's claim for a declaration to their respective shares can be established. It is further stated that since there is no period of limitation in filing the suit for partition of the joint properties, the order of abatement does not effect in filing a subsequent application under Order 1 Rule 10(2) of the Code. It is further claimed by Mr. Das that absence of any of the co-sharers in the property clubbed in the schedule of the property, cannot be ignored and that will be a denial of natural justice to a co-owner/co-sharer in a suit for partition to have his/her share ascertained and partitioned by metes and bounds.
9. Mr. Das, in respect of the decision relied upon by Mr. Roy Chowdhury reported in 82 CWN 661, has submitted that the said decision was in respect of a suit for declaration of the plaintiffs' title in the suit property and consequent prayer for injunction and the said decision cannot be applied in a suit for partition, since, such a suit stands in a very unique feature as every party in such property has got an interest bearing and everyone can be placed in the position of a plaintiff.
10. Mr. Das in this context relied upon a decision reported in AIR 1960 Calcutta 291 and reference to the decision held by the Hon'ble Court as following:
There are however certain classes of suits in which a defendant is equally interested. Such arc for example partition or administration suits. In such suits the decree passed enures not merely for the benefit of the plaintiff but for the benefit of the defendants as well. It is because of this that it is stated that in a partition suit everybody including the defendants are in the position of the plaintiff. If such a suit for partition abates by reason of the death of one of the defendants, when the proceedings have far advanced and have reached almost the journey's end, is the Court powerless to save the suit if the plaintiff or his legal representative as the case may be refuses to apply to set aside abatement? In such cases even though the defendant has been given no power to make an application to set aside the abatement, the Court has inherent power to set aside abatement and enable the suit to be proceeded with. The Court should exercise this inherent power to save the parties, the trouble and costs of a second partition suit and traverse the grounds already traversed. That the Court has this inherent power and should exercise it in appropriate cases has been recognized by the Madras High and the Bombay High Court in cases to be noticed presently.
11. In reference to the said decision, Mr. Das referred further the decision of the Hon'ble Court, as follows:
There is however the provisions of Order 1 Rule 10 of the Code which is very wide in its terms and which would enable the legal representative of deceased defendant to be added as a party. Order 1 Rule 10(2) provides:
The Court may at any stage of the proceeding.... Order 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 effectively and completely to adjudicate upon and settle all questions involved in a suit be added.
This power is very extensive and there is no limitation curtailing or restricting the power of the Court to add parties under Order 1 Rule 10 of the Code of Civil Procedure. In exercise of the power under this rule, the Court has power and should exercise that power to save a partition suit which has abated. The defendant or his legal representatives in a partition suit is equally interested as the plaintiff in having the properties in in suit partitioned. In fact in the instant case the defendants have claimed that their share in the properly be also partitioned by metes and bounds in its proceeding.
12. Mr. Das also relied upon another decision reported in AIR 1980 Allahabad 298 which is as follows:
I am inclined to the view that the powers of the Court are wide enough in the matter of addition of parties even at a belated stage and the provisions of Order 1 Rule 10 and those of Order 22 Rule 9 C.P.C. are not mutually exclusive. In suitable cases and in the interest of justice the Court can always rely on one or the other provision to do substantial justice between the parties and effectually adjudicate upon any controversy.
13. Mr. Das concluded his submission by referring to the principle discussed in a reported judgment in AIR 1940 Privy Council 215, wherein in a suit for administration, the Hon'ble Court held that:
It is open to the Judge in his discretion under Order 1 Rule 10 to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties.
14. It is submitted by Mr. Das the learned Trial Judge made no mistake in allowing the application under Order 1 Rule 10 of the Code though he rejected the application under Order 22 Rule 9 made earlier by the opposite party No. 1 as plaintiff in the suit, for setting aside the order of abatement and to substitute the legal heirs and representatives of deceased Gourirani Ghosh.
15. In consideration of submissions of both the parties, it is found that the suit pending before the learned Trial Judge from which the application has been preferred, is a suit for partition and I cannot agree with the evaluation of the petition that it was not a suit for partition and was for a mere declaration. It is fact that the plaintiff in the suit firstly prayed for a declaration for setting aside the ex parte preliminary decree dated 8th September, 1992 and final decree dated 3rd November, 1992 passed in title Suit No. 127 of 1997 as those were illegal, null and void and fraudulent, the main relief sought for in the said suit by the opposite party No. 1 plaintiff was for a preliminary decree for partition in the suit property followed by a final decree for effecting the decree of partition by metes and bounds and other reliefs. So, the suit filed by the plaintiff/opposite party No. 1 is principally a suit for partition and not an ordinary suit for declaration of title. If the learned Trial Judge allowed the first relief for setting aside the earlier order passed ex parte preliminary decree and final decree as prayed for, the suit becomes a joint property again and consequently a fresh decree for partition will be needed for proper adjudication of the shares of the respective parties having interest and share in the suit or joint properties.
16. It is nobody's denial that in a joint property each and every co-sharer has got equal stand over the suit property and when a decree for partition of the plaintiffs share is declared, the shares of the defendants are automatically declared in respect of their respective shares and when the preliminary decree is effected by metes and bounds, the respective share of each and every party to the said partition suit is equally distributed. If a person becomes a plaintiff, he/she does so only to move the provisions of law in that regard to slice the joint property into different pieces in accordance with respective shares of the co-sharers, provided the suit property is partible. In such a partition suit, the defendant also may come in the position of a plaintiff claiming partition of his share by metes and bounds. So, the presence of each every co-sharer is very much needed for effecting the partition of a joint property. Abatement of a suit for not taking step for bringing the legal heirs and representatives of a deceased party in the partition suit will not defeat such interest of any of the parties in the suit even if the prayer from the plaintiff for setting aside the abatement is refused by the Court for some reasons or others.
17. The proper procedure in the case of such a refusal is either by way of preferring an appeal of the said order of refusal to set aside the abatement of the suit or to bring the legal heirs and representatives of the deceased party by way of impleading them under the provision of Order 1 Rule 10(2) of the Code.
18. The provision of Order 1 Rule 10(2) of the Code empowers the Court itself to implead such legal heirs and other necessary parties left out in a suit for partition, to be impleaded for proper adjudication of the legal rights of the parties. When the Code itself gives such a discretionary power to the Court why it can be called that even after statutory abatement of the suit for not bringing the legal heirs of a deceased party in a suit within the prescribed period, the presence of such co-sharers/parties will be ignored and why the provision of Order 1 Rule 10(2) cannot be applied to regularize the presence of all the co-sharers as necessary parties.
19. I have gone through the decision relied upon by Mr. Roy Chowdhury as reported in 82 CWN 661 and therein it is found that the suit was for declaration of the plaintiffs title in the suit properties and for injunction restraining the defendants from interfering with their possession. In the said decision, the Hon'ble Court held that 'the position in respect of partition and administration suits has unique feature in the sense that every party in such suits has an interest in the property and can be deemed as plaintiffs giving adequate relief against others and there may be no reason for limitation involved in such proceedings has also- any redemption suits for all practical purposes'. While the interest of any of the parties in the suit property in partition or administration suits is not effected by any abatement and when it does not prejudice the other side in any of the aforementioned case, impleading of such legal heirs cannot be ignored by applying the provision under Order 1 Rule 10(2).
20. Hon'ble Judge in that decision compared that position in a partition and administration suit with that of a suit for declaration of title and perpetual injunction and held that such immune position of a partition and administration suit cannot be applied in a suit for declaration and cannot save it when such subsequent suit has abated for taking any step within time for substitution and application under Order 1 Rule 10(2) has been made.
21. I have also gone through the decision relied upon by the learned Advocate for the opposite parties and I also hold the same view that the rigidity of the abatement cannot be applied in a suit for partition,
22. I have also gone through the order passed by the learned Trial Judge in disposing of the application under Order 22 Rule 9 of the Code of Civil Procedure and the learned Judge held that the said application could not be sustained since the petitioner did not implead all the legal heirs of deceased plaintiff No. 10 and plaintiff No. 9 and that the petitioner in the said application did not serve any notice upon the said legal heirs. Since this Court is not sitting for evaluation of the said order as it has not been challenged by the petitioner, it is found from the said order that the petitioners' application for setting aside the abatement and to implead the legal heirs of plaintiff No. 10 and plaintiff No. 9 was refused. Petitioner had no other alternative but to bring those legal heirs and deceased plaintiff No. 10 and plaintiff No. 9 by way of an application under Order 1 Rule 10(2) of the Code since the presence of all interested parties or all the co-sharers in a suit for partition is needed for proper adjudication of the suit.
23. I do not find any reason to interfere with the findings made by the learned Trial Judge in disposing of the application under Order 1 Rule 10(2) of the Code of Civil Procedure since the learned Trial Judge made the correct observation in the impugned order and allowed the application under Order 1 Rule 10(2) of the Code.
24. So, I do not find any merit in the application filed by the present petitioner in view of observations made in the preceding paragraphs. Consequently, the present application cannot be sustained and it is rejected.
I pass no order as to costs.