{"id":180676,"date":"2007-07-25T00:00:00","date_gmt":"2007-07-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-tiwari-vs-smt-shanta-tiwari-on-25-july-2007"},"modified":"2017-03-06T05:48:26","modified_gmt":"2017-03-06T00:18:26","slug":"suresh-tiwari-vs-smt-shanta-tiwari-on-25-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-tiwari-vs-smt-shanta-tiwari-on-25-july-2007","title":{"rendered":"Suresh Tiwari vs Smt. Shanta Tiwari on 25 July, 2007"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Suresh Tiwari vs Smt. Shanta Tiwari on 25 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n     IN THE HIGH COURT OF CHATTISGARH AT BILASPUR         \n\n    CR No.186 of 2006\n\n    1.  Suresh  Tiwari\n                         ...Petitioners\n\n                            VERSUS\n\n    1.  Smt.  Shanta Tiwari\n\n    2.  Harshwardhan Tiwari\n\n    3.  Smt.  Sharda Tiwari\n\n    4.  Sweta  Tiwari\n\n    5.  Sapna  Tiwari\n\n    6.  Dr.  Naresh Tiwari\n\n    7.  Sanjeev Tiwari\n                         ...Respondents<\/pre>\n
!   Shri Sanjay S. Agrawal, counsel  for the applicant<\/p>\n
^   Shri  Sanjay  K.  Agrawal with  Shri  Anand Kumar  Tiwari,  counsel  for  non-applicant No.1<\/p>\n
    Shri  Arvind Kumar Dubey, counsel for  non- applicants No.6 and 7<\/p>\n
    Hon’ble Shri Dilip Raosaheb Deshmukh, J<\/p>\n
    Dated: 25\/07\/2007<\/p>\n
:   Order<\/p>\n
    Civil Revision under Section 115 of the Code of Civil Procedure, 1908<\/p>\n
                     ORAL ORDER
\n            (Passed on  25th July, 2007)<\/p>\n
                        Heard.\n<\/p>\n
\n           (2)  It is an irony of fate that a mother, aged 82<\/p>\n
years,  is  required to file a suit against  her  own<\/p>\n
sons   for   declaration  of  title   and   permanent<\/p>\n
injunction  of a house in which she resides.   It  is<\/p>\n
equally  disturbing to note that  although  the  five<\/p>\n
daughters and one son are supporting the case of  the<\/p>\n
old mother, it is the applicant\/defendant No.2 who is<\/p>\n
hotly contesting against his very old mother, perhaps<\/p>\n
to repay matru-rin.\n<\/p>\n
(3)   Aggrieved by the order dated 25.11.2006  passed<\/p>\n
by  Smt.  Ranu  Divekar, Additional  District  Judge,<\/p>\n
Bemetara  in  Civil Suit No.4-A of 2005 deciding  the<\/p>\n
preliminary  issue  No.4 relating to  non-joinder  of<\/p>\n
necessary      parties     against      him,      the<\/p>\n
applicant\/defendant  No.2 has  preferred  this  civil<\/p>\n
revision.\n<\/p>\n
(4)   Admittedly, the genealogical tree  showing  the<\/p>\n
relationship between the parties is as under:<\/p>\n
                     Ram Sanehi<\/p>\n
                              =  Smt. Shanta Tiwari
\n                                          (Plaintiff)<\/p>\n
Shesh       Mahesh    Tarni   Pushpa   Naresh  Suresh
\nArti  Kavita  Anita
\nNarayan                       (Def.6)   (Def.2)<\/p>\n
  = Manorama                = Sharda Tiwari
\n                        (Def.3)<\/p>\n
Sanjeev           Two                    Harshwardhan
\nSapna                Sweta
\n(Def.7)          Daughters                    (Def.1)<\/p>\n
(Def.5)        (Def.4)<\/p>\n
(5)   Non-applicant No.1\/plaintiff Smt. Shanta Tiwari<\/p>\n
had  instituted a Suit claiming declaration of  title<\/p>\n
and  permanent injunction, alleging inter  alia  that<\/p>\n
the  suit house and plot bearing Khasra No.544\/1  and<\/p>\n
544\/2  admeasuring  0.081 hectare and  0.024  hectare<\/p>\n
respectively  situated at village Bemetara  described<\/p>\n
detailed  in plaint schedule “A”, was purchased  from<\/p>\n
the  income of the Joint Hindu Family property  by  a<\/p>\n
registered deed of sale dated 21.11.1968 in the  name<\/p>\n
of  her  sons namely Mahesh Tiwari and Suresh Tiwari.<\/p>\n
It  was  further pleaded that the suit house  \/  plot<\/p>\n
fell  to  her share and her husband Ram Sanehi  in  a<\/p>\n
partition  effected on 24.1.1972 and  on  29.07.1974.<\/p>\n
It was pleaded that she is not bound by any terms and<\/p>\n
conditions,   if  stipulated  in  the  alleged   deed<\/p>\n
regarding  her limited right.  It was stated  further<\/p>\n
that  the defendants No. 6 & 7, namely Naresh  Tiwari<\/p>\n
and  Sanjeev  Tiwari  had filed  an  application  for<\/p>\n
mutation before the Tehsildar, Bemetara in respect of<\/p>\n
the  suit house.  The Tahsildar, Bemetara in the said<\/p>\n
Revenue   Case   No.  39-A\/6\/2003-04,  directed   for<\/p>\n
recording  the name of defendant No.1 and  defendants<\/p>\n
No.3 to 5 giving rise to the suit for declaration  of<\/p>\n
title  and  in  the  alternative  also  praying   for<\/p>\n
declaration  that the plaintiff is not bound  by  the<\/p>\n
terms  and  conditions as stipulated in  the  alleged<\/p>\n
deed and for permanent injunction for restraining the<\/p>\n
defendants   from  misappropriation   of   the   suit<\/p>\n
house\/plot.\n<\/p>\n
\n(6)   The defendant No.2\/applicant contested the suit<\/p>\n
by   denying  the  alleged  deed  of  partition   and<\/p>\n
submitting inter alia that his father late  Shri  Ram<\/p>\n
Sanehi  had purchased the house and plots apart  from<\/p>\n
the  suit house and plot in the name of all his  sons<\/p>\n
and  thus separated them orally and that as  per  the<\/p>\n
said  arrangement  defendant  Mahesh  Tiwari  and  he<\/p>\n
started residing in the suit house since the date  of<\/p>\n
its purchase along with his mother and therefore they<\/p>\n
alone  are  in  exclusive possession  over  the  suit<\/p>\n
house.   It was further pleaded that if it was  found<\/p>\n
that  the  suit  house came into  the  share  of  his<\/p>\n
father, then in such circumstances also, it would  be<\/p>\n
divided  among  all  his heirs  upon  his  death  and<\/p>\n
therefore  plaintiff being a coparcener cannot  claim<\/p>\n
her  absolute  right  upon the suit  house.   It  was<\/p>\n
further  pleaded that the five daughters of the  non-<\/p>\n
applicant  No.1\/plaintiff  Smt.  Shanta  Tiwari  were<\/p>\n
necessary parties to the suit.\n<\/p>\n
\n(7)   On  the  basis of the aforesaid pleadings,  the<\/p>\n
trial Court framed issue No.4 as under:<\/p>\n
          “Whether   daughters  of   deceased
\n          Ramsanehi are necessary parties?”\n<\/p>\n
\n(8)   The  learned Additional District Judge answered<\/p>\n
the  issue  against  the applicant\/defendant  on  the<\/p>\n
ground   that  all  the  five  daughters  had   filed<\/p>\n
affidavit in support of the pleadings of their mother<\/p>\n
in the suit.  On this premise, a finding was recorded<\/p>\n
that   the   five   daughters  of  the  non-applicant<\/p>\n
No.1\/plaintiff Smt. Shanta Tiwari were not  necessary<\/p>\n
parties in the suit.\n<\/p>\n
(9)   Shri Sanjay S. Agrawal, learned counsel for the<\/p>\n
applicant    strenuously    placed    reliance     on<\/p>\n
Kanakarathanammal  vs.  V.S. Loganatha  Mudaliar  and<\/a>  <\/p>\n
another, AIR 1965 SC 271 and Rajabibi and others  vs.<\/p>\n
S. Ameerali and another, AIR 1974 Karanatak 115 while <\/p>\n
arguing  that  since the non-applicant No.1\/plaintiff<\/p>\n
had  claimed the relief of declaration of  her  being<\/p>\n
the   exclusive  owner  of  the  suit  property,  her<\/p>\n
daughters were necessary parties to the suit.  It was<\/p>\n
argued  that  the question whether the  non-applicant<\/p>\n
No.1\/plaintiff  was  the  sole  owner  of  the   suit<\/p>\n
property  could not be adjudicated in the absence  of<\/p>\n
necessary  parties,  i.e.,  daughters  of  the   non-<\/p>\n
applicant No.1\/plaintiff.\n<\/p>\n
(10)   On the other hand, Shri Sanjay K. Agrawal with<\/p>\n
Shri Anand Kumar Tiwari, learned counsel for the non-<\/p>\n
applicant  No.1\/plaintiff argued in  support  of  the<\/p>\n
impugned  order and while placing reliance  on   Shiv<\/p>\n
Shakti  Co-op. Housing Society, Nagpur vs. M\/s Swaraj<\/p>\n
Developers  and  others<\/a>, AIR 2003 SC 2434   submitted<\/p>\n
that  there  being  no jurisdictional  error  in  the<\/p>\n
impugned   order,  apparent  on  the  face   of   it,<\/p>\n
revisional jurisdiction under Section 115 of the Code<\/p>\n
of  Civil Procedure (henceforth `the Code’) ought not<\/p>\n
to be invoked.  It was further contended that neither<\/p>\n
the  suit  was  for  partition nor  for  delivery  of<\/p>\n
possession.  Besides, all the five daughters  of  the<\/p>\n
non-applicant No.1\/plaintiff had filed  affidavit  in<\/p>\n
support   of   the   claim   of   the   non-applicant<\/p>\n
No.1\/plaintiff.  Non-applicants No.6 and 7\/defendants<\/p>\n
had  also  supported  the case of  the  non-applicant<\/p>\n
No.1\/plaintiff.  It was argued that the  question  of<\/p>\n
addition  of  parties  is not a question  of  initial<\/p>\n
jurisdiction  of  the  Court,  but  of   a   judicial<\/p>\n
discretion which has been exercised properly  by  the<\/p>\n
learned Additional District Judge and, therefore,  no<\/p>\n
interference  in exercise of revisional  jurisdiction<\/p>\n
under  Section  115  of  the  Code  was  called  for.<\/p>\n
Reliance  was  further  placed  on  Ramesh  Hirachand<\/p>\n
Kundanmal vs. Municipal Corporation of Greater Bombay  <\/p>\n
and   others<\/a>,   (1992)  2  SCC   524,   Kasturi   vs.<\/p>\n
Iyyamperumal and others<\/a>, (2005) 6 SCC 733, Amit Kumar   <\/p>\n
Shaw  and  another  vs. Farida Khatoon  and  another,<\/p>\n
(2005)  11  SCC 403 and Prem Lala Nahata and  another  <\/p>\n
vs. Chandi Prasad Sikaria, (2007) 2 SCC 551.<\/p>\n
(11)  I  have  considered the rival submissions  with<\/p>\n
utmost  circumspection.  Order 1 Rule 10 of the  Code<\/p>\n
is as follows:\n<\/p>\n<\/p>\n
    “O.1 R.10 : Suit in name of wrong plaintiff. –
\n    (1)   Where a suit has been instituted in  the
\n    name of the wrong person as plaintiff or where
\n    it  is doubtful whether it has been instituted
\n    in  the name of the right plaintiff, the Court
\n    may  at  any  stage of the suit, if  satisfied
\n    that  the  suit has been instituted through  a
\n    bona  fide  mistake, and that it is  necessary
\n    for  the  determination of the real matter  in
\n    dispute so to do, order any other person to be
\n    substituted  or added as plaintiff  upon  such
\n    terms as the court thinks just.\n<\/p><\/blockquote>\n
         (2)  Court may strike out or add parties.\n<\/p><\/blockquote>\n
    –   The   Court  may  at  any  stage  of   the
\n    proceedings,  either  upon  or   without   the
\n    application of either party, and on such terms
\n    as  may appear to the Court to be just,  order
\n    that  the name of any party improperly joined,
\n    whether  as plaintiff or defendant, be  struck
\n    out, and that the name of any person who ought
\n    to  have been joined, whether as plaintiff  or
\n    defendant, or whose presence before the  court
\n    may  be necessary in order to enable the Court
\n    effectually and completely to adjudicate  upon
\n    and  settle all the questions involved in  the
\n    suit, be added.\n<\/p><\/blockquote>\n
         (3)   No  person  shall  be  added  as  a
\n    plaintiff  suing without a next friend  or  as
\n    the  next  friend  of  a plaintiff  under  any
\n    disability without his consent.\n<\/p><\/blockquote>\n
         (4)  Where defendant added, plaint to  be
\n    amended.  –  Where a defendant is  added,  the
\n    plaint   shall,  unless  the  Court  otherwise
\n    directs, be amended in such manner as  may  be
\n    necessary,  and amended copies of the  summons
\n    and  of the plaint shall be served on the  new
\n    defendant and, if the Court thinks fit, on the
\n    original defendant.\n<\/p><\/blockquote>\n
         (5)   Subject  to the provisions  of  the
\n    Indian  Limitation  Act, 1877  (15  of  1877),
\n    section  22,  the proceedings as  against  any
\n    person  added as defendant shall be deemed  to
\n    have   begun  only  on  the  service  of   the
\n    summons.”\n<\/p><\/blockquote>\n
(12)  In  Ramesh  Hirachand Kundanmal  vs.  Municipal<\/p>\n
Corporation of Greater Bombay and others<\/a> (supra), the<\/p>\n
Apex  Court has drawn a clear distinction  between  a<\/p>\n
necessary  party and a proper party and has  held  as<\/p>\n
under:-\n<\/p>\n<\/p>\n
         “6.  Sub-rule (2) of Rule 10 gives a wide
\n    discretion to the Court to meet every case  of
\n    defect  of parties and is not affected by  the
\n    inaction   of  the  plaintiff  to  bring   the
\n    necessary parties on record.  The question  of
\n    impleadment  of a party has to be  decided  on
\n    the  touchstone  of  Order  1  Rule  10  which
\n    provides  that only a necessary  or  a  proper
\n    party may be added.  A necessary party is  one
\n    without whom no order can be made effectively.
\n    A  proper  party  is one in whose  absence  an
\n    effective order can be made but whose presence
\n    is necessary for a complete and final decision
\n    on  the  question involved in the  proceeding.
\n    The  addition  of parties is generally  not  a
\n    question of initial jurisdiction of the  Court
\n    but  of a judicial discretion which has to  be
\n    exercised  in  view  of  all  the  facts   and
\n    circumstances of a particular case.”\n<\/p><\/blockquote>\n
          “10.   The  power of the  Court  to  add
\n    parties under Order 1 Rule 10 CPC, came up for
\n    consideration before this Court in Razia Begum
\n    v. Anwar Begum,<\/a> [1959 SCR 1111].  In that case
\n    it  was  pointed out that the courts in  India
\n    have  not  treated the matter of  addition  of
\n    parties as raising any question of the initial
\n    jurisdiction  of  the Court  and  that  it  is
\n    firmly  established  as a result  of  judicial
\n    decisions that in order that a person  may  be
\n    added  as a party to a suit, he should have  a
\n    direct  interest in the subject matter of  the
\n    litigation   whether  it  be   the   questions
\n    relating to movable or immovable property.”\n<\/p><\/blockquote>\n
          “14.   It  cannot be said that the  main
\n    object  of the rule is to prevent multiplicity
\n    of  actions  though  it may incidentally  have
\n    that  effect.   But  that  appears  to  be   a
\n    desirable consequence of the rule rather  than
\n    its  main objective.  The person to be  joined
\n    must  be one whose presence is necessary as  a
\n    party.  What makes a person a necessary  party
\n    is not merely that he has relevant evidence to
\n    give  on some of the questions involved;  that
\n    would  only make him a necessary witness.   It
\n    is  not merely that he has an interest in  the
\n    correct solution of some question involved and
\n    has  thought of relevant arguments to advance.
\n    The  only  reason which makes it necessary  to
\n    make  a person a party to an action is so that
\n    he should be bound by the result of the action
\n    and  the  question  to be settled,  therefore,
\n    must be a  question in the action which cannot
\n    be  effectually and completely settled  unless
\n    he  is a party.  The line has been drawn on  a
\n    wider  construction of the  rule  between  the
\n    direct  interest  or  the legal  interest  and
\n    commercial   interest.   It   is,   therefore,
\n    necessary that the person must be directly  or
\n    legally  interested  in  the  action  in   the
\n    answer,  i.e., he can say that the  litigation
\n    may  lead  to a result which will  affect  him
\n    legally  that  is  by  curtailing  his   legal
\n    rights.  …… ”\n<\/p><\/blockquote>\n
(13)  In  Amit  Kumar  Shaw and  another  vs.  Farida<\/p>\n
Khatoon and another  (supra), the Apex Court held  as<\/p>\n
under:\n<\/p>\n<\/p>\n
          “9. The object of Order 1 Rule 10 is  to
\n    discourage contests on technical pleas, and to
\n    save  honest  and  bona fide   claimants  from
\n    being non-suited.  The power to strike out  or
\n    add  parties can be exercised by the court  at
\n    any  stage  of  the proceedings.   Under  this
\n    rule,  a person may be added as a party  to  a
\n    suit in the following two cases:\n<\/p><\/blockquote>\n
         (1)  when he ought to have been joined as
\n           plaintiff or defendant, and is not joined so,
\n           or<\/p>\n
         (2)  when, without his presence, the questions
\n           in the suit cannot be completely decided.”<\/p><\/blockquote>\n
         “10.  The power of a court to add a party
\n    to  a  proceeding cannot depend solely on  the
\n    question  whether he has interest in the  suit
\n    property.   The question is whether the  right
\n    of a person may be affected if he is not added
\n    as   a   party.   Such  right,  however,  will
\n    necessarily   include  an  enforceable   legal
\n    right.”\n<\/p><\/blockquote>\n
(14)  In Kasturi vs. Iyyamperumal and others<\/a> (supra),<\/p>\n
two  tests  were  laid down by  the  Apex  Court  for<\/p>\n
determining  the question as to who  is  a  necessary<\/p>\n
party.  The Apex Court held as under:\n<\/p>\n<\/p>\n
          “7.  In our view, a bare reading of this
\n    provision, namely, second part of Order 1 Rule
\n    10  sub-rule (2) CPC would clearly  show  that
\n    the  necessary parties in a suit for  specific
\n    performance  of a contract for  sale  are  the
\n    parties  to the contract or if they are  dead,
\n    their  legal representatives as also a  person
\n    who had purchased the contracted property from
\n    the  vendor.  In equity as well as in law, the
\n    contract constitutes rights and also regulates
\n    the  liabilities of the parties.  A  purchaser
\n    is  a  necessary party as he would be affected
\n    if  he had purchased with or without notice of
\n    the   contract,  but  a  person   who   claims
\n    adversely  to  the  claim  of  a  vendor   is,
\n    however,  not  a  necessary party.   From  the
\n    above,  it is now clear that two tests are  to
\n    be  satisfied for determining the question who
\n    is  a  necessary party.  Tests are – (1) there
\n    must  be  a right to some relief against  such
\n    party in respect of the controversies involved
\n    in  the  proceedings; (2) no effective  decree
\n    can be passed in the absence of such party.”\n<\/p><\/blockquote>\n
(15)  In  Prem  Lala  Nahata and another  vs.  Chandi<\/p>\n
Prasad   Sikaria  (supra),  the  Apex   Court   while<\/p>\n
considering the scope of Order 1 observed as under:<\/p>\n
         “15. It is well understood that procedure
\n    is   the  handmaid  of  justice  and  not  its
\n    mistress.  The scheme of Order 1 and  Order  2
\n    clearly  shows that the prescriptions  therein
\n    are  in the realm of procedure and not in  the
\n    realm  of substantive law or rights.  ……..
\n    In   the  context  of  these  provisions  with
\n    particular reference to the rules in  Order  1
\n    and  Order 2 of the Code, it is clear that  an
\n    objection  of  misjoinder  of  plaintiffs   or
\n    misjoinder   of  causes  of   action,   is   a
\n    procedural objection and it is not  a  bar  to
\n    the  entertaining of the suit or the trial and
\n    final disposal of the suit.   ……… ”\n<\/p><\/blockquote>\n
(16) Section 115 of the Code provides as under :<\/p>\n
          “115.   Revision.  –  (1)   The  High
\n          Court may call for the record of  any
\n          case  which has been decided  by  any
\n          Court  subordinate to such High Court
\n          and  in which no appeal lies thereto,
\n          and   if   such   subordinate   Court
\n          appears-\n<\/p><\/blockquote>\n
               (a)  to have exercised a jurisdiction not vested in
\n                    it by law, or<\/p>\n<\/blockquote>\n
               (b)  to have failed to exercise a jurisdiction so
\n                    vested, or<\/p>\n<\/blockquote>\n
               (c)  to have acted in the exercise of its
\n                    jurisdiction illegally or with material irregularity,<\/p>\n
          the High Court may make such order in
\n          the case as it thinks fit:<\/p><\/blockquote>\n<\/blockquote>\n
               Provided  that  the  High  Court
\n          shall  not, under this section,  vary
\n          or  reverse  any order made,  or  any
\n          order  deciding  an  issue,  in   the
\n          course of a suit or other proceeding,
\n          except  where the order,  if  it  had
\n          been  made  in  favour of  the  party
\n          applying  for  revision,  would  have
\n          finally disposed of the suit or other
\n          proceedings.\n<\/p><\/blockquote>\n
               (2)   The High Court shall  not,
\n          under  this section, vary or  reverse
\n          any decree or order against which  an
\n          appeal lies either to the High  Court
\n          or to any Court subordinate thereto.\n<\/p><\/blockquote>\n
               (3)    A   revision  shall   not
\n          operate  as a stay of suit  or  other
\n          proceeding  before the  Court  except
\n          where  such  suit or other proceeding
\n          is stayed by the High Court.\n<\/p><\/blockquote>\n
               Explanation. – In this  section,
\n          the  expression “any case  which  has
\n          been   decided”  includes  any  order
\n          made, or any order deciding an issue,
\n          in  the  course  of a suit  or  other
\n          proceeding.”\n<\/p><\/blockquote>\n
(17)  It  is  thus  clear that the High  Court  while<\/p>\n
exercising revisional jurisdiction under Section  115<\/p>\n
of  the  Code would not interfere unless there  is  a<\/p>\n
jurisdictional  error  of  one  of  the  three  types<\/p>\n
mentioned  in clauses (a), (b) and (c) of sub-section<\/p>\n
(1) of Section 115 of the Code.  In the present case,<\/p>\n
it   is   not   in  dispute  that  the  non-applicant<\/p>\n
No.1\/plaintiff is residing in the suit accommodation.<\/p>\n
Since  a  cloud has been cast upon her title  by  the<\/p>\n
mutation of the names of defendants No.2 to  5,  non-<\/p>\n
applicant  No.1\/plaintiff  had  filed  suit   for   a<\/p>\n
declaration simplicitor that she was the owner of the<\/p>\n
suit  property.  Neither partition nor possession  of<\/p>\n
the  suit  property was claimed and except  the  five<\/p>\n
daughters   of   the  non-applicant   No.1\/plaintiff,<\/p>\n
namely,  Tarni, Pushpa, Arti, Kavita and  Anita,  the<\/p>\n
other  sons  and grand sons and grand daughters  were<\/p>\n
parties  to the suit.  No relief was claimed  against<\/p>\n
her  daughters by the non-application No.1\/plaintiff.<\/p>\n
Not  only this Tarni, Pushpa, Arti, Kavita and  Anita<\/p>\n
had furnished affidavits in support of the suit filed<\/p>\n
by  their mother.  Even the non-applicants\/defendants<\/p>\n
No.6  and 7, i.e., the son and grand son of the  non-<\/p>\n
applicant No.1\/plaintiff were supporting the case  of<\/p>\n
the   plaintiff.   Under  these  circumstances,   the<\/p>\n
questions  involved in the suit could be  effectively<\/p>\n
decided without the five daughters being joined as  a<\/p>\n
party  for the simple reason that they were not  only<\/p>\n
supporting  the case of the plaintiff, but  had  also<\/p>\n
filed  affidavits  in support thereof.   As  held  in<\/p>\n
Ramesh  Hirachand Kundanmal vs. Municipal Corporation  <\/p>\n
of Greater Bombay and others<\/a> (supra), the addition of<\/p>\n
party  in  general  is  not  a  question  of  initial<\/p>\n
jurisdiction   of  the  Court  but  of   a   judicial<\/p>\n
discretion which has to be exercised in view  of  the<\/p>\n
circumstances of a particular case.  In the facts and<\/p>\n
circumstances  of  the  case  mentioned   above,   an<\/p>\n
effective  decree could be passed in  the  suit  even<\/p>\n
though the five daughters were not joined as parties.<\/p>\n
As  held  in Prem Lala Nahata and another vs.  Chandi<\/p>\n
Prasad Sikaria (supra), the scheme of Order 1 and the<\/p>\n
prescriptions therein are in the realm  of  procedure<\/p>\n
and  not  in the realm of substantial law or  rights.<\/p>\n
In  the  facts and circumstances, it cannot  be  said<\/p>\n
that  the  learned  Additional  District  Judge   has<\/p>\n
committed an error of jurisdiction under any  of  the<\/p>\n
clauses  (a),  (b)  and  (c) of  sub-section  (1)  of<\/p>\n
Section 115 of the Code.  The refusal to add the five<\/p>\n
daughters  as  parties to the suit is  based  upon  a<\/p>\n
sound exercise of judicial discretion.  Therefore, no<\/p>\n
interference  is  called  for  in  exercise  of   the<\/p>\n
revisional  jurisdiction under  Section  115  of  the<\/p>\n
Code.\n<\/p>\n
(18) The case of Kanakarathanammal vs. V.S. Loganatha  <\/p>\n
Mudaliar and<\/a> another (supra) cited by learned counsel<\/p>\n
for   the   applicant\/defendant   No.2   is   clearly<\/p>\n
distinguishable as in that case it was held that  the<\/p>\n
suit filed by the appellant takes the character of  a<\/p>\n
suit  for  partition and in such a suit the appellant<\/p>\n
alone  would  not  be entitled to  claim  any  relief<\/p>\n
against   the  respondents  and  it  was   absolutely<\/p>\n
essential  that all the three heirs, i.e.,  the  sons<\/p>\n
were  before the Court.  The present suit  is  not  a<\/p>\n
suit for partition or for possession and all the five<\/p>\n
daughters,  who  were not impleaded as  parties,  had<\/p>\n
given  affidavits  before the Court fully  supporting<\/p>\n
the   claim  of  the  mother.   Therefore,  the  non-<\/p>\n
applicant No.1\/plaintiff’s claim cannot  be  rejected<\/p>\n
on the ground that she has failed to implead her five<\/p>\n
daughters in the suit.\n<\/p>\n
(19)  In  Rajabibi  and others vs.  S.  Ameerali  and<\/p>\n
another  (supra)  also, relied on by learned  counsel<\/p>\n
for  the  applicant\/defendant No.2, the suit was  for<\/p>\n
possession of the property repudiating the  claim  of<\/p>\n
the   other   co-sharers.    Placing   reliance    on<\/p>\n
Kanakarathanammal  vs.  V.S. Loganatha  Mudaliar  and<\/a>  <\/p>\n
another  (supra), it was held that in the absence  of<\/p>\n
the   other  co-sharers,  the  suit  would   not   be<\/p>\n
maintainable.     This   case   is    also    clearly<\/p>\n
distinguishable for the above mentioned  reasons  and<\/p>\n
does  not  come to the aid of the applicant\/defendant<\/p>\n
No.2.\n<\/p>\n
(20)  In  this  view  of the  matter,  I  am  of  the<\/p>\n
considered   opinion  that  neither  there   is   any<\/p>\n
jurisdictional  error apparent on  the  face  of  the<\/p>\n
impugned  order nor has the applicant\/defendant  No.2<\/p>\n
been able to demonstrate that the judicial discretion<\/p>\n
exercised by the learned Additional District Judge in<\/p>\n
rejecting the prayer for addition of the daughters as<\/p>\n
necessary  parties  to  the  suit  was  not  a  sound<\/p>\n
exercise of judicial discretion.\n<\/p>\n
(21)  In  the  result,  the  revision  fails  and  is<\/p>\n
accordingly dismissed.\n<\/p>\n
JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Suresh Tiwari vs Smt. Shanta Tiwari on 25 July, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-180676","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nSuresh Tiwari vs Smt. 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