IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
CR No.186 of 2006
1. Suresh Tiwari
...Petitioners
VERSUS
1. Smt. Shanta Tiwari
2. Harshwardhan Tiwari
3. Smt. Sharda Tiwari
4. Sweta Tiwari
5. Sapna Tiwari
6. Dr. Naresh Tiwari
7. Sanjeev Tiwari
...Respondents
! Shri Sanjay S. Agrawal, counsel for the applicant
^ Shri Sanjay K. Agrawal with Shri Anand Kumar Tiwari, counsel for non-applicant No.1
Shri Arvind Kumar Dubey, counsel for non- applicants No.6 and 7
Hon’ble Shri Dilip Raosaheb Deshmukh, J
Dated: 25/07/2007
: Order
Civil Revision under Section 115 of the Code of Civil Procedure, 1908
ORAL ORDER
(Passed on 25th July, 2007)
Heard.
(2) It is an irony of fate that a mother, aged 82
years, is required to file a suit against her own
sons for declaration of title and permanent
injunction of a house in which she resides. It is
equally disturbing to note that although the five
daughters and one son are supporting the case of the
old mother, it is the applicant/defendant No.2 who is
hotly contesting against his very old mother, perhaps
to repay matru-rin.
(3) Aggrieved by the order dated 25.11.2006 passed
by Smt. Ranu Divekar, Additional District Judge,
Bemetara in Civil Suit No.4-A of 2005 deciding the
preliminary issue No.4 relating to non-joinder of
necessary parties against him, the
applicant/defendant No.2 has preferred this civil
revision.
(4) Admittedly, the genealogical tree showing the
relationship between the parties is as under:
Ram Sanehi
= Smt. Shanta Tiwari
(Plaintiff)Shesh Mahesh Tarni Pushpa Naresh Suresh
Arti Kavita Anita
Narayan (Def.6) (Def.2)= Manorama = Sharda Tiwari
(Def.3)Sanjeev Two Harshwardhan
Sapna Sweta
(Def.7) Daughters (Def.1)(Def.5) (Def.4)
(5) Non-applicant No.1/plaintiff Smt. Shanta Tiwari
had instituted a Suit claiming declaration of title
and permanent injunction, alleging inter alia that
the suit house and plot bearing Khasra No.544/1 and
544/2 admeasuring 0.081 hectare and 0.024 hectare
respectively situated at village Bemetara described
detailed in plaint schedule “A”, was purchased from
the income of the Joint Hindu Family property by a
registered deed of sale dated 21.11.1968 in the name
of her sons namely Mahesh Tiwari and Suresh Tiwari.
It was further pleaded that the suit house / plot
fell to her share and her husband Ram Sanehi in a
partition effected on 24.1.1972 and on 29.07.1974.
It was pleaded that she is not bound by any terms and
conditions, if stipulated in the alleged deed
regarding her limited right. It was stated further
that the defendants No. 6 & 7, namely Naresh Tiwari
and Sanjeev Tiwari had filed an application for
mutation before the Tehsildar, Bemetara in respect of
the suit house. The Tahsildar, Bemetara in the said
Revenue Case No. 39-A/6/2003-04, directed for
recording the name of defendant No.1 and defendants
No.3 to 5 giving rise to the suit for declaration of
title and in the alternative also praying for
declaration that the plaintiff is not bound by the
terms and conditions as stipulated in the alleged
deed and for permanent injunction for restraining the
defendants from misappropriation of the suit
house/plot.
(6) The defendant No.2/applicant contested the suit
by denying the alleged deed of partition and
submitting inter alia that his father late Shri Ram
Sanehi had purchased the house and plots apart from
the suit house and plot in the name of all his sons
and thus separated them orally and that as per the
said arrangement defendant Mahesh Tiwari and he
started residing in the suit house since the date of
its purchase along with his mother and therefore they
alone are in exclusive possession over the suit
house. It was further pleaded that if it was found
that the suit house came into the share of his
father, then in such circumstances also, it would be
divided among all his heirs upon his death and
therefore plaintiff being a coparcener cannot claim
her absolute right upon the suit house. It was
further pleaded that the five daughters of the non-
applicant No.1/plaintiff Smt. Shanta Tiwari were
necessary parties to the suit.
(7) On the basis of the aforesaid pleadings, the
trial Court framed issue No.4 as under:
“Whether daughters of deceased
Ramsanehi are necessary parties?”(8) The learned Additional District Judge answered
the issue against the applicant/defendant on the
ground that all the five daughters had filed
affidavit in support of the pleadings of their mother
in the suit. On this premise, a finding was recorded
that the five daughters of the non-applicant
No.1/plaintiff Smt. Shanta Tiwari were not necessary
parties in the suit.
(9) Shri Sanjay S. Agrawal, learned counsel for the
applicant strenuously placed reliance on
Kanakarathanammal vs. V.S. Loganatha Mudaliar and
another, AIR 1965 SC 271 and Rajabibi and others vs.
S. Ameerali and another, AIR 1974 Karanatak 115 while
arguing that since the non-applicant No.1/plaintiff
had claimed the relief of declaration of her being
the exclusive owner of the suit property, her
daughters were necessary parties to the suit. It was
argued that the question whether the non-applicant
No.1/plaintiff was the sole owner of the suit
property could not be adjudicated in the absence of
necessary parties, i.e., daughters of the non-
applicant No.1/plaintiff.
(10) On the other hand, Shri Sanjay K. Agrawal with
Shri Anand Kumar Tiwari, learned counsel for the non-
applicant No.1/plaintiff argued in support of the
impugned order and while placing reliance on Shiv
Shakti Co-op. Housing Society, Nagpur vs. M/s Swaraj
Developers and others, AIR 2003 SC 2434 submitted
that there being no jurisdictional error in the
impugned order, apparent on the face of it,
revisional jurisdiction under Section 115 of the Code
of Civil Procedure (henceforth `the Code’) ought not
to be invoked. It was further contended that neither
the suit was for partition nor for delivery of
possession. Besides, all the five daughters of the
non-applicant No.1/plaintiff had filed affidavit in
support of the claim of the non-applicant
No.1/plaintiff. Non-applicants No.6 and 7/defendants
had also supported the case of the non-applicant
No.1/plaintiff. It was argued that the question of
addition of parties is not a question of initial
jurisdiction of the Court, but of a judicial
discretion which has been exercised properly by the
learned Additional District Judge and, therefore, no
interference in exercise of revisional jurisdiction
under Section 115 of the Code was called for.
Reliance was further placed on Ramesh Hirachand
Kundanmal vs. Municipal Corporation of Greater Bombay
and others, (1992) 2 SCC 524, Kasturi vs.
Iyyamperumal and others, (2005) 6 SCC 733, Amit Kumar
Shaw and another vs. Farida Khatoon and another,
(2005) 11 SCC 403 and Prem Lala Nahata and another
vs. Chandi Prasad Sikaria, (2007) 2 SCC 551.
(11) I have considered the rival submissions with
utmost circumspection. Order 1 Rule 10 of the Code
is as follows:
“O.1 R.10 : Suit in name of wrong plaintiff. –
(1) Where a suit has been instituted in the
name of the wrong person as plaintiff or where
it is doubtful whether it has been instituted
in the name of the right plaintiff, the Court
may at any stage of the suit, if satisfied
that the suit has been instituted through a
bona fide mistake, and that it is necessary
for the determination of the real matter in
dispute so to do, order any other person to be
substituted or added as plaintiff upon such
terms as the court thinks just.(2) Court may strike out or add parties.
– The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such terms
as may appear to the Court to be just, order
that the name of any party improperly joined,
whether as plaintiff or defendant, be struck
out, and that the name of any person who ought
to have been joined, whether as plaintiff or
defendant, or whose presence before the court
may be necessary in order to enable the Court
effectually and completely to adjudicate upon
and settle all the questions involved in the
suit, be added.(3) No person shall be added as a
plaintiff suing without a next friend or as
the next friend of a plaintiff under any
disability without his consent.(4) Where defendant added, plaint to be
amended. – Where a defendant is added, the
plaint shall, unless the Court otherwise
directs, be amended in such manner as may be
necessary, and amended copies of the summons
and of the plaint shall be served on the new
defendant and, if the Court thinks fit, on the
original defendant.(5) Subject to the provisions of the
Indian Limitation Act, 1877 (15 of 1877),
section 22, the proceedings as against any
person added as defendant shall be deemed to
have begun only on the service of the
summons.”(12) In Ramesh Hirachand Kundanmal vs. Municipal
Corporation of Greater Bombay and others (supra), the
Apex Court has drawn a clear distinction between a
necessary party and a proper party and has held as
under:-
“6. Sub-rule (2) of Rule 10 gives a wide
discretion to the Court to meet every case of
defect of parties and is not affected by the
inaction of the plaintiff to bring the
necessary parties on record. The question of
impleadment of a party has to be decided on
the touchstone of Order 1 Rule 10 which
provides that only a necessary or a proper
party may be added. A necessary party is one
without whom no order can be made effectively.
A proper party is one in whose absence an
effective order can be made but whose presence
is necessary for a complete and final decision
on the question involved in the proceeding.
The addition of parties is generally not a
question of initial jurisdiction of the Court
but of a judicial discretion which has to be
exercised in view of all the facts and
circumstances of a particular case.”“10. The power of the Court to add
parties under Order 1 Rule 10 CPC, came up for
consideration before this Court in Razia Begum
v. Anwar Begum, [1959 SCR 1111]. In that case
it was pointed out that the courts in India
have not treated the matter of addition of
parties as raising any question of the initial
jurisdiction of the Court and that it is
firmly established as a result of judicial
decisions that in order that a person may be
added as a party to a suit, he should have a
direct interest in the subject matter of the
litigation whether it be the questions
relating to movable or immovable property.”“14. It cannot be said that the main
object of the rule is to prevent multiplicity
of actions though it may incidentally have
that effect. But that appears to be a
desirable consequence of the rule rather than
its main objective. The person to be joined
must be one whose presence is necessary as a
party. What makes a person a necessary party
is not merely that he has relevant evidence to
give on some of the questions involved; that
would only make him a necessary witness. It
is not merely that he has an interest in the
correct solution of some question involved and
has thought of relevant arguments to advance.
The only reason which makes it necessary to
make a person a party to an action is so that
he should be bound by the result of the action
and the question to be settled, therefore,
must be a question in the action which cannot
be effectually and completely settled unless
he is a party. The line has been drawn on a
wider construction of the rule between the
direct interest or the legal interest and
commercial interest. It is, therefore,
necessary that the person must be directly or
legally interested in the action in the
answer, i.e., he can say that the litigation
may lead to a result which will affect him
legally that is by curtailing his legal
rights. …… ”(13) In Amit Kumar Shaw and another vs. Farida
Khatoon and another (supra), the Apex Court held as
under:
“9. The object of Order 1 Rule 10 is to
discourage contests on technical pleas, and to
save honest and bona fide claimants from
being non-suited. The power to strike out or
add parties can be exercised by the court at
any stage of the proceedings. Under this
rule, a person may be added as a party to a
suit in the following two cases:(1) when he ought to have been joined as
plaintiff or defendant, and is not joined so,
or(2) when, without his presence, the questions
in the suit cannot be completely decided.”“10. The power of a court to add a party
to a proceeding cannot depend solely on the
question whether he has interest in the suit
property. The question is whether the right
of a person may be affected if he is not added
as a party. Such right, however, will
necessarily include an enforceable legal
right.”(14) In Kasturi vs. Iyyamperumal and others (supra),
two tests were laid down by the Apex Court for
determining the question as to who is a necessary
party. The Apex Court held as under:
“7. In our view, a bare reading of this
provision, namely, second part of Order 1 Rule
10 sub-rule (2) CPC would clearly show that
the necessary parties in a suit for specific
performance of a contract for sale are the
parties to the contract or if they are dead,
their legal representatives as also a person
who had purchased the contracted property from
the vendor. In equity as well as in law, the
contract constitutes rights and also regulates
the liabilities of the parties. A purchaser
is a necessary party as he would be affected
if he had purchased with or without notice of
the contract, but a person who claims
adversely to the claim of a vendor is,
however, not a necessary party. From the
above, it is now clear that two tests are to
be satisfied for determining the question who
is a necessary party. Tests are – (1) there
must be a right to some relief against such
party in respect of the controversies involved
in the proceedings; (2) no effective decree
can be passed in the absence of such party.”(15) In Prem Lala Nahata and another vs. Chandi
Prasad Sikaria (supra), the Apex Court while
considering the scope of Order 1 observed as under:
“15. It is well understood that procedure
is the handmaid of justice and not its
mistress. The scheme of Order 1 and Order 2
clearly shows that the prescriptions therein
are in the realm of procedure and not in the
realm of substantive law or rights. ……..
In the context of these provisions with
particular reference to the rules in Order 1
and Order 2 of the Code, it is clear that an
objection of misjoinder of plaintiffs or
misjoinder of causes of action, is a
procedural objection and it is not a bar to
the entertaining of the suit or the trial and
final disposal of the suit. ……… ”(16) Section 115 of the Code provides as under :
“115. Revision. – (1) The High
Court may call for the record of any
case which has been decided by any
Court subordinate to such High Court
and in which no appeal lies thereto,
and if such subordinate Court
appears-(a) to have exercised a jurisdiction not vested in
it by law, or(b) to have failed to exercise a jurisdiction so
vested, or(c) to have acted in the exercise of its
jurisdiction illegally or with material irregularity,the High Court may make such order in
the case as it thinks fit:
Provided that the High Court
shall not, under this section, vary
or reverse any order made, or any
order deciding an issue, in the
course of a suit or other proceeding,
except where the order, if it had
been made in favour of the party
applying for revision, would have
finally disposed of the suit or other
proceedings.
(2) The High Court shall not,
under this section, vary or reverse
any decree or order against which an
appeal lies either to the High Court
or to any Court subordinate thereto.
(3) A revision shall not
operate as a stay of suit or other
proceeding before the Court except
where such suit or other proceeding
is stayed by the High Court.
Explanation. – In this section,
the expression “any case which has
been decided” includes any order
made, or any order deciding an issue,
in the course of a suit or other
proceeding.”
(17) It is thus clear that the High Court while
exercising revisional jurisdiction under Section 115
of the Code would not interfere unless there is a
jurisdictional error of one of the three types
mentioned in clauses (a), (b) and (c) of sub-section
(1) of Section 115 of the Code. In the present case,
it is not in dispute that the non-applicant
No.1/plaintiff is residing in the suit accommodation.
Since a cloud has been cast upon her title by the
mutation of the names of defendants No.2 to 5, non-
applicant No.1/plaintiff had filed suit for a
declaration simplicitor that she was the owner of the
suit property. Neither partition nor possession of
the suit property was claimed and except the five
daughters of the non-applicant No.1/plaintiff,
namely, Tarni, Pushpa, Arti, Kavita and Anita, the
other sons and grand sons and grand daughters were
parties to the suit. No relief was claimed against
her daughters by the non-application No.1/plaintiff.
Not only this Tarni, Pushpa, Arti, Kavita and Anita
had furnished affidavits in support of the suit filed
by their mother. Even the non-applicants/defendants
No.6 and 7, i.e., the son and grand son of the non-
applicant No.1/plaintiff were supporting the case of
the plaintiff. Under these circumstances, the
questions involved in the suit could be effectively
decided without the five daughters being joined as a
party for the simple reason that they were not only
supporting the case of the plaintiff, but had also
filed affidavits in support thereof. As held in
Ramesh Hirachand Kundanmal vs. Municipal Corporation
of Greater Bombay and others (supra), the addition of
party in general is not a question of initial
jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of the
circumstances of a particular case. In the facts and
circumstances of the case mentioned above, an
effective decree could be passed in the suit even
though the five daughters were not joined as parties.
As held in Prem Lala Nahata and another vs. Chandi
Prasad Sikaria (supra), the scheme of Order 1 and the
prescriptions therein are in the realm of procedure
and not in the realm of substantial law or rights.
In the facts and circumstances, it cannot be said
that the learned Additional District Judge has
committed an error of jurisdiction under any of the
clauses (a), (b) and (c) of sub-section (1) of
Section 115 of the Code. The refusal to add the five
daughters as parties to the suit is based upon a
sound exercise of judicial discretion. Therefore, no
interference is called for in exercise of the
revisional jurisdiction under Section 115 of the
Code.
(18) The case of Kanakarathanammal vs. V.S. Loganatha
Mudaliar and another (supra) cited by learned counsel
for the applicant/defendant No.2 is clearly
distinguishable as in that case it was held that the
suit filed by the appellant takes the character of a
suit for partition and in such a suit the appellant
alone would not be entitled to claim any relief
against the respondents and it was absolutely
essential that all the three heirs, i.e., the sons
were before the Court. The present suit is not a
suit for partition or for possession and all the five
daughters, who were not impleaded as parties, had
given affidavits before the Court fully supporting
the claim of the mother. Therefore, the non-
applicant No.1/plaintiff’s claim cannot be rejected
on the ground that she has failed to implead her five
daughters in the suit.
(19) In Rajabibi and others vs. S. Ameerali and
another (supra) also, relied on by learned counsel
for the applicant/defendant No.2, the suit was for
possession of the property repudiating the claim of
the other co-sharers. Placing reliance on
Kanakarathanammal vs. V.S. Loganatha Mudaliar and
another (supra), it was held that in the absence of
the other co-sharers, the suit would not be
maintainable. This case is also clearly
distinguishable for the above mentioned reasons and
does not come to the aid of the applicant/defendant
No.2.
(20) In this view of the matter, I am of the
considered opinion that neither there is any
jurisdictional error apparent on the face of the
impugned order nor has the applicant/defendant No.2
been able to demonstrate that the judicial discretion
exercised by the learned Additional District Judge in
rejecting the prayer for addition of the daughters as
necessary parties to the suit was not a sound
exercise of judicial discretion.
(21) In the result, the revision fails and is
accordingly dismissed.
JUDGE