IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7480 of 2011 Bibi Fatima Khatton @ Fatima & Ors Versus Sudin Main & Anr ---------------------------------- 12. 02.12.2011. Heard the learned senior counsel, Mr. Mishra on behalf of the petitioner and also the learned counsel, Mr. Prashant Ved Sen on behalf of the respondent. (2) This application under Article 227 of the Constitution of India has been filed by the intervener- petitioners for setting aside the order dated 13.07.2005 passed by Subordinate Judge, Bettiah in partition suit No.274 of 2004 whereby the learned Court below rejected the application filed by the petitioner under Order 1 Rule 10 C.P.C. for being added as party. (3) It appears that the plaintiff-respondent No.1 filed partition suit against the defendant who is respondent No.2 in this application for partition of the property of Bodha Mian alleging that Bodha Mian had gifted the property to both of them. A genealogical table has been appended at the foot of the plaint. (4) From perusal of the said genealogical table, it appears that the second son of Bodha Mian, namely, Ahmad Mian had two wives. The plaintiff and defendant- respondents are the sons from first wife. The first son filed partition suit and the second son is the defendant. In that partition suit, Ahmad Mian and his two sons from the second wife filed the intervention application alleging that - 2 - they are also the co-owner of the property and the alleged gift said to have been made by Bodha Mian in favour of the plaintiff and defendant is void, false, inoperative etc. (5) From perusal of the impugned order, it appears that the learned Court below decided the controversy between the parties while deciding the application under Order 1 Rule 10 C.P.C. and held that there had already been partition and that if at all the present interveners had any interest in the property, they can file a separate suit. As stated above, the genealogy has been given in the plaint itself by the plaintiffs and they admitted that the intervener, i.e., Ahmad Mian and the two sons from the second wife are heirs of Bodha Mian. Therefore, unless, it is proved by the plaintiff that Bodha Mian gifted the property, the title will not vest only on the plaintiff and defendant of the suit. So far this question is concerned that can be decided only in presence of the other real owner of the property. In view of the genealogical table, prima facie it appears that the interveners have a direct interest in the subject matter of the partition suit. The relief claimed by the plaintiff can only be granted if they will be able to prove that the gift alleged to have been given by Bodha Mian is illegal and valid. In my opinion, therefore, in absence of the real owner, i.e., the present interveners, no effective decree could be passed. (6) In the case of Mumbai International Airport VS. Regency Convention Centre 2010 (7) - 3 - Supreme Court cases 417, the Apex Court has held at paragraph 15 as follows : “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right / interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” (7) In the said decision, the Apex Court also held that the sub-Rule 10 (2) of Order 1 C.P.C., no doubt, does not speaks about the right of non-party to be impleaded as party but bout 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 motu or on the application of the plaintiff or the defendant or on an application of a person who is not party to the suit. In other words, the Court has the discretion to either allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances of the case. In the present case as stated above, the petitioners have a direct interest in the subject matter of the suit and, therefore, their presence is necessary. The learned Court below has failed to consider this aspect of the matter and, therefore, in my opinion, the learned Court below has not - 4 - exercised a jurisdiction vested in it by law. Therefore, the impugned order is unsustainable in the eye of law. (8) In the result, this writ application is allowed. The impugned order is set aside and the present petitioners are added as party-defendant in the suit. Sanjeev/- (Mungeshwar Sahoo,J.)