IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.219 of 2006 LAL BAHADUR PRASAD & ORS Versus SMT. LEELAWATI DEVI & ORS ----------- 18 7/7/2008 Heard counsel for the plaintiff- petitioners. Despite service of notice on the opposite parties no one has chosen to appear on their behalf. This application is directed against the order dated 6.1.2006, whereby and whereunder, the application filed by defendant nos. 9 and 10 for impleading one Vidyapati Devi, wife of plaintiff- petitioner no.1, namely, Lal Bahadur Prasad has been allowed on the ground that her presence is necessary as certain property belonging to Vidyapati Devi has also been made subject matter of the present partition suit. Counsel for the petitioners has made a short submission that this aspect of the matter that the property of Vidyapati Devi is part of the present partition suit is an error of record. In this context he has reformed to the plaint to contend that no portion of the property of Vidyapati Devi was ever made subject matter of the partition suit. He further submits that as a matter of fact earlier defendant no. 3 had filed an application seeking amendment in the written 2 statement wherein for the first time a plea was taken that certain property of Vidyapati Devi should also be treated to be joint family property. Such amendment sought by the defendant no. 3 was, however, rejected by the court below by order dated 20.5.2007 and the same stood confirmed by way of dismissal of C.R. No. 1092 of 2007 by order dated 10.2.1998 ( Annexure-2). On the basis of this counsel for the petitioners submits that now the minor sons of defendant no. 3 on acquiring majority had chosen to re-agitate the same issue by seeking impleadment of Vidyapati Devi on a phoney ground that her presence was necessary as it appeared to them that that the suit property which was being suggested by the defendants to be the property of the plaintiffs actually belongs to Vidyapati Devi. Counsel for the petitioner, therefore, also has emphasized that even though the plea that the property being subject matter of suit or the counter claim that had been allowed by the court below holding that they actually belonged to Vidyapati Devi, as has been recorded in the impugned order, suffers from the apparent error. This Court, after looking into the records produced by the counsel for the petitioners by filing supplementary affidavit, finds that it is clear from the impugned order that the counter claim was in fact not allowed, as would be also apparent from the order dated 7.10.2005 and 25.11.2005 of the court below, wherein final 3 decision on the counter claim of the defendants was yet to be taken. Thus, in the light of the aforesaid order, this Court would find it difficult to accept that by the order dated 22.9.2005 counter claim was already allowed. Therefore, on the basis of such pending counter claim yet to be allowed, impleadment of Vidyapati Devi, wife of plaintiff no.1 was not permissible. That apart, when the plea that the defendant no.3 himself at the earlier stage of amendment of written statement including property of Vidyapati Devi was rejected by the court below which stood confirmed up to this Court, as noted above, that by itself preclude the court below from passing any fresh order for impleading Vidyapati Devi as a party to the suit. Be that as it may, in view of the fact that property of Vidyapati Devi is yet to be made subject matter of the present partition suit, the present impugned order dated 6.1.2006 must be held tobe factually incorrect and legally unsustainable and the court below has committed material irregularity in passing the impugned order and the same must be and is hereby set aside by this Court in exercise of power under section 115 of the Code of Civil Procedure. Consequently, part of the impugned order, whereby and whereunder, impleadement of Vidyapati Devi was allowed is set aside but, this Court would leave the matter open and if the counter claim containing assertion of the defendant nos. 9 4 and 10 seeking to also include land of Vidyapati Devi is allowed by the court below it will also be open to the defendant nos. 9 and 10 to file a fresh application claiming impleadement of Vidyapati Devi. With the aforementioned observations and directions this application is allowed. ( Mihir Kumar Jha, J.) Abhay Kumar