SCA/12767/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12767 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= MOHANBHAI RATANJI PATEL & 5 - Petitioner(s) Versus DINESHKUMAR MANILAL PATEL & 6 - Respondent(s) ================================================= Appearance : MR RS SANJANWALA for Petitioner(s) : 1 - 6. None for Respondent(s) : 1 - 7, 7.2.1, 7.2.2, 7.2.3, 7.2.4, 7.2.5,7.2.6 ================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/10/2008 SCA/12767/2008 2/11 JUDGMENT ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioners original defendants No. 7 to 12 have prayed for an appropriate writ, direction and /or order quashing and setting aside the impugned order passed by the learned 10th Additional Senior Civil Judge, Surat dated 16.5.2008 below Exh. 1 in Regular Civil Suit No. 506 of 1996, by which the learned trail Court has directed the plaintiff to join all male descendents upto three degrees in the suit and the plaintiff is also further directed to join illegitimate children of his father Manilal in the said suit. The aforesaid order is passed by the learned trial Court invoking Order 1 Rule 10 of Code of Civil Procedure. 2. Respondent No.1 herein original plaintiff had instituted Regular Civil Suit No. 506 of 1996 in the Court of learned Senior Civil Judge, Surat SCA/12767/2008 3/11 JUDGMENT for partition. During the trial the learned trial Court was of the opinion that for complete and effective adjudication of the suit all the co- parcners are necessary and proper parties in the suit and, therefore, considering Order 1 Rule 10(2) of the Code of Civil Procedure, the learned trial Court passed the impugned order directing the plaintiff to join all male descendents upto three degrees in the suit inclusive of illegitimate children of his father Manilal in the said suit. Being aggrieved and dissatisfied with the said impugned order, petitioners original defendants No. 7 to 12 have preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri R.S. Sanjanwala, learned advocate for the petitioners has vehemently submitted that learned trial Court has materially erred in invoking Order 1 Rule 10(2) of the Code of Civil Procedure. It is further submitted by Shri Sanjanwala that earlier the original plaintiffs SCA/12767/2008 4/11 JUDGMENT had in fact filed application Exh. 297 to join some of the co-parcners as defendants, however the said application was dismissed by the Court and did not permit the plaintiff to amend the plaint and by passing the impugned order the learned trial Court has virtually reviewed earlier order exceeding the powers under Order 1 Rule 10(2), which is not permissible. It is also further submitted by Shri Sanjanwala, learned advocate appearing for the petitioners that the impugned order passed by the learned trial Court is without giving any opportunity to the petitioners- defendants. It is further submitted that grave prejudice will be caused to the petitioners. If all co-parcners are ordered to be joined as party to the suit, as the trial would be delayed and the interim injunction is operative against the petitioners. It is submitted that before passing any order and ordering to add defendants under Order 1 Rule 10(2) of the Code of Civil Procedure, the Court ought to have given an opportunity of being heard SCA/12767/2008 5/11 JUDGMENT to the other defendants and / or parties to the suit. Therefore, it is submitted that when the impugned order has been passed without hearing the petitioners original defendants No. 7 to 12, the impugned order deserves to be quashed and set aside. It is further submitted that the learned trial Court has materially erred in not considering the order passed below Exh. 296. It is also further submitted that when the plaintiffs is not taking any action and not joining all the co-parcners, there is no reason for the Court to suo moto exercise the powers and order the plaintiff to add all the co-parcners as defendants. By making above submissions, it is requested to quash and set aside the impugned order passed by the learned trial Court. 4.Heard Shri R.S. Sanjanwala, learned advocate for the petitioners. Respondent No.1. original plaintiff had instituted the suit for partition and to get his share from ancestral property. It can not be disputed that for effective and SCA/12767/2008 6/11 JUDGMENT complete adjudication and granting complete relief all the co-parcners are required to be heard and are necessary and proper parties to the suit. All the co-parcners were not parties to the suit. At the time of hearing of the suit and at the time of argument of the suit the trial Court was of the opinion that presence of all the co- parcners will be necessary in the suit in order to enable the Court effectually and completely adjudicating upon and settle the question involved in the suit and, therefore, in exercise of the power under Order 1 Rule 10(2) of the Code of Civil Procedure, the learned trial Court has passed the impugned order directing the plaintiff to add all the co-parcners as defendants in the suit. 5. It is the contention on behalf of the petitioners that before passing the impugned order and adding the some persons in the suit and while exercising the power under Order 1 Rule 10(2) of the Code of Civil Procedure, the Court is required to hear the parties to the suit. The SCA/12767/2008 7/11 JUDGMENT said submission has no substance at all. First of all, there is no express provision in Order 1 Rule 10(2), by which the Court is required to hear the parties to the suit before passing the order under Order 1 Rule 10(2) of the Code of Civil Procedure. Secondly, Order 1 Rule 10(2) of the Code of Civil Procedure confers power upon the Court at any stage of the proceedings either upon or without application of either parties to struck out the name of any party improperly joined and / or add the name of any persons who ought to have been joined, whether as plaintiff or defendant, whose presence before Court may be necessary in order to enable the Court effectually and completely to award upon and settle all the questions involved in the suit. Therefore, when the Court is satisfied and thinks it proper on his own suo moto without application of the either parties, that the name of any persons who ought to have been joined is not joined and in order to enable the Court effectually and completely adjudicated upon and SCA/12767/2008 8/11 JUDGMENT settle all the questions involved in the suit, the presence of the said person is necessary, the Court can pass order under Order 1 Rule 10(2) of the Code of Civil Procedure. Therefore, it will be the satisfaction of the Court that for effective and complete adjudication of the suit and settle all the questions involved in the suit, a person who ought to have been joined in the suit and is not joined is required to be added. Therefore, for satisfaction of the Court, the Court is not required to hear the parties to the suit. Under the circumstances, when the Court suo motu exercised the powers under Order 1 Rule 10(2) of the Code of Civil Procedure and passed the order to add certain persons in the suit as plaintiff or defendant having satisfied that the presence of such persons before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit, Court is not required to hear the parties to the suit. Under the circumstances, the impugned order SCA/12767/2008 9/11 JUDGMENT is not required to be quashed and set aside on the aforesaid ground. Learned advocate for the petitioners is also not in a position to satisfy the Court what prejudice will be caused to the petitioners original defendants No. 7 to 12 if all the co-parcners are joined as party to the suit. The only prejudice that might be caused to the petitioners shown is that the trial will be delayed and interim injunction is operative against the petitioners. The same cannot be said to be such a grave prejudice caused to the petitioners if all the co-parcners are ordered to be brought on record in the suit. Prejudice to be caused should be of a substantial nature. 6. Now, so far as the contention on behalf of the petitioners that earlier Court had rejected the application Exh. 297 submitted by the plaintiff to join some of the co-parcners in the suit and to permit the plaintiff to amend the plaint under Order 6 Rule 17 of the Code of Civil Procedure and the same was rejected by the trail SCA/12767/2008 10/11 JUDGMENT Court and, therefore, learned trial Court ought not to have passed the impugned order is concerned, it is required to be noted that both the orders are different and under different provisions. One was at the instance of the plaintiff under 6 Rule 17 of the Code of Civil Procedure, second is by the Court exercising the power Order 1 Rule 10(2) of the Code of Civil Procedure. Order 1 Rule 10 of the Code of Civil Procedure confers power upon the Court at any stage to struck out the name of the plaintiff or defendant or to add some persons to the suit. The powers of the Court under Order 1 Rule 10 of the Code of Civil Procedure are independent powers. Even, considering Exh. 297 application was not it appears that if to join all the co-parcners and illegitimate children of the father of the plaintiff. However, while passing the impugned order the learned trial Court has passed an order directing the plaintiff to add all the co- parcners as well as illegitimate children of the father of the plaintiff and, therefore, to that SCA/12767/2008 11/11 JUDGMENT extent there will not be any conflicting order. 7. Considering the above and for effective and complete adjudication of the suit and to settle all the questions involved in the suit effectually and completely and when the suit is for partition of ancestral property, the learned trial Court has passed the impugned order invoking Order 1 Rule 10(2) of the Code of Civil Procedure, it cannot be said that the learned trial Court has committed any error and / or passed the order de-hors the law and/ or exercised the jurisdiction not vested in it, which calls for interference of this Court under Article 227 of the Constitution of India. Under the circumstances, there is no substance in the present petition and the same deserves to be dismissed and is accordingly dismissed. (M.R.SHAH, J.) kaushik