IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1357 of 2006 BRAJ KISHORE PRASAD GUPTA Versus MD. SHAMIM ANWAR & ORS ----------- 3 12.1.2009 Heard counsel for the parties. The very concept of Order I Rule 10(2) of the Code of Civil Procedure (C.P.C.) is to enable the court to secure presence of a person who is found to be either necessary or a proper party in the suit. In the present case, from the very reading of the plaint, it would be clear that some thing which was left out in an earlier Suit No. 89 of 1984 was sought to be claimed by the plaintiff-petitioner in the subsequent suit. To be more precise and clear, plot no. 594 which was subject matter also of the earlier partition suit and regarding which it was envisaged that four decimals thereof would not be subject matter of that partition suit as the same will remain under joint occupation for the time being till its partition was claimed by a party in future, has now been made the subject matter of the present suit. From paragraph nos. 5 & 7 of the plaint, it is also clear that that allegations/averments have been made by the plaintiff-petitioner as against the interveners-applicants stating therein that since they had not complied the terms and conditions under the 2 earlier partition suit and the compromise decree thereof, they were not entitled for any share in the aforesaid four decimals of land. Keeping all these pleadings into consideration, the court below in fact as also having appreciated the contents and spirit of the judgment of the earlier partition suit had allowed the application filed by the interveners-applicants adding them as co- plaintiffs. Counsel for the petitioner has a serious objection to either the interveners-applicants being allowed as a co-plaintiffs or even as a party to the suit. Howsoever, strong his objection may be, the plaintiff-petitioner is bound by the earlier inter-parte judgment and decree of the partition suit which leaves the fate and future of four decimals of land undecided and which is now the subject matter of the present suit. True it is that the interveners-applicants did not seek their impleadment as a plaintiffs in their application but if the complaint as a whole especially paragraph nos. 5 & 7 thereof are taken into consideration, the plaintiff-petitioner in order to get relief as with regard to four decimals of land of plot no. 594 will have to prove this fact that the condition set out in the compromise decree was not fulfilled by the interveners-applicants. That however cannot be done in absence of the interveners-applicants 3 and therefore, that part of the order impleading interveners-applicants as a party to the suit cannot be interfered by this Court keeping in view the object of Order I Rule 10(2) of the C.P.C. and the findings recorded by the court below in this regard in the impugned order. Now when the plaintiff-petitioner has a serious objection of the interveners-applicant being added as plaintiff to the suit, he will have to atleast allow the intervener-applicant to be added as a party to the suit to place their case as with regard to the plot no. 594 because there is an earlier inter-parte judgment and decree inform of compromise decree which itself envisages offer by one party to the other for joining litigation in terms of paragraph no. 6 of the compromise petition. The court below is therefore directed to allow the interveners-applicants to be first added in the catena of defendants, permit one month time to file their written statement and thereafter, frame additional issue as with regard to the apportionment of plot no. 594 in the context of the earlier partition suit no. 89 of 1984. Any evidence which has to be adduced strictly on this score must be completed within a period of two months from the date of framing of the additional issue which also as stated above must be done within fifteen days from the 4 date of the additional written statement by the interveners-applicants to be added as defendants. It is made clear that the interveners-applicants will not be allowed to have any say in any other subject matter of the suit except plot no. 594 and therefore, the court below will also take into consideration that the advanced stage of hearing of this suit is not unnecessarily delayed and dragged on account of the impleadment of the intervener-opposite parties. In view of the fact that the interveners added as defendants would force the plaintiffs to re-open their case for staking of half of the land of plot no. 594, they must pay by way of compensation to the plaintiff- petitioners a sum of Rs. 7,500/- within a period of two months from the date of receipt/production of a copy of this order. It is also directed that the entire exercise must be completed by the court below within a period of nine months from the receipt/production of a copy of this order. Rsh (Mihir Kumar Jha, J.)