IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1927 of 2008 KAMAL KUMAR AGRAWAL & ORS Versus GYANTI DEVI ----------- For the petitioners: Mr. Yogendra Mishra, Sr.Adv. & Md. Shahnawaz Ali, Advocate. For the opposite party: Mr. Satyavrut Verma,Advocate. ---------- 2 27/11/2008 Heard counsel for the petitioners and counsel for the opposite party. In the opinion of this Court the impugned order would be in teeth of the earlier findings recorded in the order dated 6.10.1994 wherein similar prayer for addition of purchasers as party at the stage of final decree proceeding was rejected on the ground that share of defendant nos. 6 and 7 after preliminary decree was yet to be defined and the stage of claiming right of preemption by way of section 4 of the Partition Act had not arrived as yet. Mr. Yogendra Mishra, learned Senior counsel appearing on behalf of the petitioners while assailing the impugned order would submit that both the injuries had still remained the same, but then only because this time the purchasers themselves filed an application, the Court 2 has gone to allow impleadment in purported exercise of power under order 1 Rule 10 (2) of the Code of Civil Procedure on the ground that the purchasers must be allowed to defend their right, which was affected during pendency of the final decree proceedings. Mr. Satyavrat Verma, learned counsel appearing on behalf of the opposite party while seeking to defend the impugned order has submitted that the only concern of the opposite party was that if the property was purchased in the year 2000 by her she must not be removed from the scene without being heard. In other words, Mr. Verma’s apprehension is that even if it is held that the property purchased by the opposite party fall within the share of defendant nos. 6 and 7 and if right of preemption is claimed against the property purchased by the opposite party and the same is allowed in terms of section 4 of the Partition Act, the injury which would be inflicted on the opposite party and that too without being heard in absence of she being a party to 3 the final decree proceedings would be immense and irreparable. Accordingly, it is submitted that the principles of impleadment of the party under order 1 Rule 10 of the Code of Civil Procedure would clearly apply to the facts of this case and the opposite party would be definitely a proper party, if not a necessary party. In the opinion of this Court there are only two things which has to be looked into at this stage for impleadment of the party in the final decree proceedings, one being whether the party sought to be added has any preferential right which would be taken away even without his/her being heard. That aspect of the matter is in fact well covered by the earlier order dated 6.10.1994 wherein it has been held that the purchasers through defendant nos. 6 and 7 will have to get their right only through defendant nos. 6 and 7 and if any land purchased by them is out of the share of defendant nos. 6 and 7 as per final decree there would be no definite share for the purchasers and at least on that 4 ground they cannot be added as a party to the suit. Second aspect, of course, high lighted by Mr. Verma would necessitate addition of party like the opposite party being purchasers, but then Mr. Yogendra Mishra, learned Senior Counsel appearing on behalf of the petitioner assures this Court that the plaintiffs do not intend to exercise their right under section 4 of the Partition Act as with regard to the land alienated in favour of the opposite party (Gyanti Devi) through her vendors i.e. defendant nos. 6 and 7. He also submits that in the event a necessity would arise for exercising such right against the opposite party, the plaintiffs themselves will choose not only to make an application but would also ensure that Gyanti Devi, the opposite party, is made party to the final decree proceeding and is also heard in the matter before any order is passed on the prayer for exercising right under section 4 of the Partition Act. In the opinion of this Court, once 5 such clear a undertaking is given by counsel for the petitioner, there would be no occasion for the opposite party to be impleaded as party at this stage of preparation of final decree, in as much as, right of the opposite party now stands well protected. That being so, the impugned order allowing impleadment of the opposite party is set aside and this Civil Revision Application is disposed of with the aforementioned observations/directions. (Mihir Kumar Jha, J.) Abhay Kumar