IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1055 of 2006
1. Geeta Devi wife of Late Bijay Prakash Singh,
2. Ashok Kumar Singh,
3. Kishore Kumar Singh,
4. Manoj Kumar Singh,
All sons of Late Bijay Prakash Singh.
5. Gulbi Devi, wife of Dr. Barun Kumar Singh,
6. Pinki Kumari, daughter of Late Bijay Prakash Singh,
7. Rinki Kumari, D/o-Late Bijay Prakash Singh,
8. Chandra Shekhar Singh, S/o-Late Satya Prakash Singh,
All residents of Village-Babutola, P.S.-Banka, District-Banka.
.........Defendants/Petitioners.
VERSUS
1. Anurag Narayan Singh,
2. Laxmi Narayan Singh,
3. Tri Bhuwan Prasad Singh,
All sons of Late Shiv Prasad Singh.
4. Ranjeet Prasad Singh,
5. Randhir Prasad Singh,
6. Lal Mohan Prasad Singh,
7. Dil Mohan Prasad Singh,
All sons of Late Krishna Prasad Singh.
8. Bishwa Mohani Devi, W/o-Upendra Prasad Singh, D/o-Late Krishna Prasad
Singh.
9. Shyam Sundar Singh, S/o-Late Munsi Prasad Singh.
10. Nuta Devi, D/o-Late Munsi Pd. Singh, resident of Vill.-Mohanpur, P.S.-
Barahat, District-Banka.
11. Sitendra Prasad Singh,
12. Basant Prasad Singh,
13. Rakesh Prasad Singh (Minor),
14. Santosh Kumar Singh (Minor),
15. Dip Kumar Singh (Minor),
16. Uma Bati Devi,
17. Satya Bhama Devi,
All sons and daughters of Late Satrughan Prasad Singh. 13 to 15 are minors
respondents through their elder brother Sitendra Pd. Singh.
18. Kumudni Devi, W/o-Late Ranjeet Prasad Singh, resident of Village+P.O.-
Laugain, P.S.-Sangrampur, District-Munger.
19. Bula Devi @ Lakho Devi, W/o-Naresh Mohan Singh, resident of Vill.-
Birnigaria, P.S.-Barahat, District-Banka.
20. Uma Devi, wife of Mani Prasad Singh,
21. Bishwa Shankar Singh,
22. Lala Ravi Shankar Singh,
Both Sons of Mani Prasad Singh.
23. Kabita Singh, W/o-Raj Kumar Singh, resident of Vill.-Rajator, P.S.-
Sambhuganj, District-Banka.
24. Prem Shekhar Singh,
25. Gauri Shankar Singh,
26. Bishnu Shankar Singh,
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27. Shambhu Singh,
All sons of Late Mani Prasad Singh.
28. Purshottam Singh,
29. Munna Kumar Singh,
30. Lal Kumar Singh,
All sons of Late Sachida Nand Singh.
31. Tara Devi, W/o-Late Sachida Nand Singh.
32. Karuna Kumari Singh, W/o-Ramesh Mohan Singh, resident of Vill-
Mohanandpur, P.O.-Jeyatpur, District-Bista.
33. Pappu Devi, W/o-Binay Kumar Singh,
34. Kalpana Devi, W/o-Late Sita Ram Singh, resident of Village-Pair, P.S.-Dhoria,
District-Banka.
35. Sudhana Devi,
36. Bandana Devi,
37. Jawahar Singh,
38. Anil Prasad Singh,
All sons of Late Sita Ram Singh, All except Sl.No.10,18,19,23,32,33,34, are
residents of Village-Raipura, P.S.-Shambhuganj, District-Banka, Bhagalpur.
........Plaintiffs/Opposite Parties.
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18 27.10.2010 An application has been filed by the respondents, who
are plaintiffs in the Court below, for vacating the stay granted by this
Court.
In my view, there was no point in vacating the stay and
keeping the application pending and, therefore, with consent of parties
the matter was heard for final disposal at this stage itself.
The defendants are petitioners before this Court and
have challenged the order dated 24.04.2006 passed by the Sub Judge-
III, Banka in Title Suit No.25/82. By the said order, the Trial Court
has directed the plaintiffs, who are respondents herein, to implead two
persons as defendants on payment of cost of Rs.500/-. The facts
leading to this case are noted hereunder.
In 1982 (28 years back) plaintiffs/respondents filed a
suit for declaration of title and confirmation of possession and, if
found, out of possession, restoration thereof in respect of certain lands
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as against the defendants. Defendants immediately filed their written
statement and one of the objections they have taken was that the suit
ought to fail because of non-joinder of necessary parties. The
defendants, who are petitioners before this Court, clearly pleaded that
the suit cannot proceed in absence of two persons named in the written
statement. Thus, plaintiffs were put to notice in 1982 itself about the
necessity of these two persons for adding their name in the suit as
defendants. It appears that subsequently plaintiffs sought an
amendment to the plaint claiming certain additional reliefs. In
response thereto, the defendants again objected and protested that
these additional reliefs could not be granted in absence of two other
persons, who were necessary parties to the suit. Again the plaintiffs,
having been put to notice, chose not to add them as parties and took
their chance in the trial. An issue was also framed in this regards.
The case went to trial and evidence closed. Once argument started,
obviously the plaintiffs realized the difficulty. At this late stage after
two and half decades, the Trial Court comes to rescue of the plaintiffs
in purported exercise of jurisdiction vested in the Trial Court in term
of Order-I Rule-10 of the Code of Civil Procedure without realizing
the facts as noted above, the Court bails out the plaintiffs by ordering
addition of those very two persons as defendants on payment of cost of
Rs.500/-. It is this order that is challenged because as the defendants
would submit that it would revert the clock 28 years back, as upon
addition of these two defendants, the suit will begin once again de
novo.
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On the other hand, on behalf of the plaintiffs/
respondents, who have all appeared, it is submitted that the Court had
jurisdiction to order addition of parties at any stage in interest of
justice and to avoid multiplicity of litigation it having done so this
Court should not interfere.
I am afraid, I cannot accept the plea of
plaintiffs/respondents. One has to keep in mind that interest of justice
is not a one way traffic. It has to flow from both sides. It is not a case
where on realization of a mistake a correction is being done, which
was inadvertently left out. Here right from the first day the petitioners
raised this objection to which the plaintiffs pay no heed. Plaintiffs
were twice put to notice of this fact before the trial begun but they
chose to ignore it. Specific issue was framed in this regards when the
parties went to trial. Thus, where the parties were already noticed and
it chose to ignore the same then it is not open to the Court to come to
the rescue of the parties and bail it out. The parties took a conscious
decision and a contemplated risk and must pay for its consequences.
In my view, learned counsel for the petitioner is correct
in submitting that if the order of the Court is allowed to stand it cures a
defect which would have rendered the suit liable to be dismissed for
non-joinder of necessary parties and it would bail out the plaintiffs,
who had taken a calculated risk after due notice and were surely to
lose. That cannot be permitted. Even if application was made by the
plaintiffs at this belated stage, surely, the Trial Court would have
rejected the same. If that be so then how the Trial Court could do
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what the plaintiffs were precluded to do.
In that view of the matter, in would not be in the
interest of justice to allow the order of the Trial Court to stand. The
Trial Court cannot be permitted to correct a fatal error of a party. The
order of the Trial Court is set aside. The Trial Court is directed to
conclude the hearing of the matter expeditiously preferable within one
month from the date of communication of this order. Accordingly, the
civil revision application is allowed.
Trivedi/ (Navaniti Prasad Singh, J.)