Judgment:
S.P. Wangdi, J.
1. This revision petition is directed against the order of the learned Civil Judge. South Sikkim at Namchi dated 30-5-2008 in T.S. Case No. 4 of 2006, whereby applications filed by the revisionists herein for being impleaded as parties to the suit were rejected.
2. At the very outset, it may be stated that the respondent No. 3 neither appeared nor was he represented by any counsel despite notice. Respondent No. 2 appeared in person only on 15-4-2009. On perusal of the records of the trial Court of T.S. Case No. 4 of 2006, the position was similar even there. The only ones to contest the petitions in the Court below were the respondent Nos. 1, 4 and 5. Considering the facts and circumstances, the matter was heard in the absence of respondents 2 and 3.
3. In order to deal with the case at hand, it would not be necessary to set out the detailed facts of the case but only that much as would be relevant for the purpose of disposal of this revision petition.
4. It appears that the respondent No. 3, Shri Umesh Prasad Gupta, had filed T.S. Case No. 4 of 2006 in the Court of the learned Civil Judge, South District at Namchi, against the respondent No. 1 as the principle defendant and two of his brothers as pro forma defendants, inter alia, for partition of properties which he claimed to be joint coparcenery properties of the Hindu Undivided family constituted by the legal heirs and successors of his grandfather, Late Anga Rahit Prasad Gupta. When the suit had proceeded to a considerable extent and the parties had adduced their evidence, the petitioner No. 1, claiming to be the widow of grandfather Anga Rahit Prasad Gupta (deceased) filed an application seeking to be impleaded as a party in the suit claiming her right as a widow of the grandfather. Before this could be disposed of, the petitioner No. 2 also filed a similar application claiming herself to be the daughter-in-law of one Shiv Dhani, deceased brother of the said Late Anga Rahit Prasad Gupta. She claimed her right over the coparcenary properties in the capacity of a widow from one of the sons in the lineal descendants.
5. It may be noted that, in so far as the above facts are concerned, there is no dispute. This was the position before the learned trial Court and also before this Court. It is confirmed even by the counsel appearing for the respondents 1, 4 and 5 when asked of him on this account.
6. It is the case of the petitioners that the learned Civil Judge committed an error in summarily rejecting the applications without having been given an opportunity of hearing, particularly the petition filed by the petitioner No. 2. It was an error on the part of the learned Civil Judge to hold that the petitioners had no locus standi to make the applications and the provisions of Order I, Rule 13, Civil Procedure Code had been wrongly construed by him while dismissing their applications.
7. On going through the impugned order, I find that the learned Civil Judge has rejected the applications by that common order on the ground that (a) the petitioners have no locus standi to make the applications; (b) objections on non-joinder or misjoinder of parties ought to have been made by the parties to the suit and not by anyone else and that such application ought to have been filed at the earliest possible opportunity and that (c) the case was at its fag end and both the parties in the suit had closed their evidence.
8. I have heard Mr. Ashok Pradhan, learned Advocate appearing on behalf of the petitioners. I have also heard Mr. N. K. P. Sarraf, learned Advocate assisted by Mr. Yogesh Gurung, learned Advocate appearing on behalf of respondents No. 1, 4 and 5 who defended the impugned order of the learned Civil Judge and by relying upon certain portions of the evidence submitted that the basis for which the impleadment was being sought for by the petitioners was not maintainable.
9. On my thoughtful consideration of the entire facts and circumstances of the case, I am of the view that the learned trial Court appears to have acted in exercise of its jurisdiction illegally and with material irregularity. My conclusion is arrived at on the basis of my findings stated hereafter.
10. In order to arrive at a conclusion as to whether the petitioners are necessary parties to the suit or not, it would be necessary to see as to whether the properties in question are coparcenary properties of the parties in the suit as well as that of the petitioners. In the present case, this aspect of the matter appears to be an admitted position. This was also the submission of the learned Counsel appearing on behalf of respondent No. 1, 4 and 5 before this Court during the course of arguments.
11. Once this aspect is not disputed, the next that requires necessary consideration is, as to whether the petitioners would have any right under the Hindu Law, more specifically the Hindu Succession Act, 1956. Of this there is little doubt in the light of Section 10 of the said Act and the schedule thereto that the petitioners undoubtedly have a right on the questioned properties. This is, however, a prima facie view at this stage subject to what will emerge after the parties have appeared in Court and adduced necessary evidence in this behalf. The findings of the learned Civil Judge on the aspect of locus standi is, therefore, clearly erroneous.
12. On the second ground of rejection of the applications, the learned Civil Judge appears to have taken resort to the provisions of Order 1, Rule 13 of the Civil Procedure Code and has held that the application for objection on non-joinder or misjoinder of parties ought to have been made by the plaintiffs (i.e. the respondents No. 3, 4 and 5 in the present proceeding) to the suit and not by strangers like the petitioners, and that such application ought to have been filed at the earliest possible opportunity. In this regard, it is stated that there can be no dispute that in terms of Order 1, Rule 13, it ought to be the parties to the suit who should take all objections on the ground of non-joinder or misjoinder of parties and not by anyone else, and that all such objections ought to be filed at the earliest possible opportunity. I, however, find it difficult to agree that none else can approach the Court in a pending suit for being added as a party when Clauses (1) and (2) of Rule 10 of Order 1 of the Civil Procedure Code makes it clearly permissible to do so, so long as it satisfies the requirements of that provision. Therefore, the second ground of rejection of the applications filed by the petitioners for being added as a party in the suit by the learned Civil Judge must fail.
13. As regards the question of delay in filing the applications is concerned, we are again to be guided by the aforesaid provisions i.e. Clauses (1) and (2) of Rule 10 of Order 1, Civil Procedure Code, which are reproduced below:
Rule 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 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.
14. On a bare reading of the above, it would be amply clear that there is no restriction on the period within which applications under the said provisions are required to be filed. On the contrary, the words 'the Court may at any stage of a suit' appearing in both clauses indicate that 'if the Court is satisfied that it is necessary for the determination of the real matter in dispute order any person to be substituted or added as plaintiff upon such terms as the Court thinks just' Rule 2 of Order 10 which is relevant in the present case, vests the Court with the power, even suo motu, to order that the name of any party amongst others be added either as plaintiff or defendant in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. One hardly needs to re-emphasise the law that a necessary party is one without whom no order can be made effectively and that a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceeding. In this regard, the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay : (1992) 2 SCC 524 : 1992 AIR SCW 846 may be referred to. Paragraphs 5 and 6 of the said judgment being relevant are reproduced below:
5. ...Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order 1, Rule 3, to avoid multiplicity of suit and needless expenses all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and competely adjudicate upon and settle all the questions involved in the suit.
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.
15. In a later judgment of the Supreme Court in the case of Savitri Devi v. District Judge : (1999) 2 SCC 577 : AIR 1999 SC 976 relying upon the ratio laid down in Ramesh Hirachand Kundanmal case (supra) held that the plaintiff as 'dominus litis' and not bound to sue every possible adverse claimant in the same suit. The Court at any stage of the suit may direct for addition of parties by exercising its judicial discretion keeping in view the facts and circumstances of a particular case. In Paragraph 9 of the judgment in Savitri Devi's case (supra) the Supreme Court has held as under:
9. Order 1, Rule 10, CPC enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code.
We must be alive to the position of law that procedural law is intended to be a handmaid of justice and not its mistress. Courts of law have to ensure that the interest of justice surpasses all other considerations and restrain itself from being pedantic while disposing of issues before it. In the present case, whatever may be the outcome in so far as the petitioners are concerned, it is to be noted at this stage, that they are widows clamouring for justice and vindication of their rights however belated it may appear to be. Judicial notice need to be taken of the fact that in the kind of male dominated society in which the petitioners live, it is not expected that they would be aware of all the goings on in the family. When prima facie in the admitted position of the facts they do appear to have certain amount of rights, it would have been appropriate for the learned trial Court to have exercised its discretion in their favour in order to enable them to participate in the suit so that there can be an effective adjudication of the disputes arising between the parties.
16. Another aspect of the matter is that, if the order of the trial Court is to be upheld, the consequences would be that the suit would proceed in the absence of the petitioners who would be at liberty to file fresh suits on the same matter leading to multiplicity of litigation and proceedings which is neither the object nor the legislative intent of any procedural or substantive law. As laid down in the case of Savitri Devi (supra), avoidance of multiplicity of proceedings is also one of the objects of the said provisions of Order 1, Rule 10 Civil Procedure Code.
17. In all fairness, it must be placed on record that Mr. N.K.P. Sarraf, Advocate appearing on behalf of the respondent Nos. 1, 4 and 5 ultimately accepted the above position leaving this Court to pass such orders as may be appropriate.
18. In the facts and circumstances of the case, the impugned order deserves to be set aside and is accordingly done so. The petitioners be impleaded as defendants in the suit who may participate in it so that the Court may be able to effectively and completely adjudicate upon and settle all the questions involved in the suit. The trial Court is directed to ensure that the suit is disposed of expeditiously by restricting the proceedings from the stage when the newly added parties file their written statements.
It is made clear that the views and the conclusions arrived at while disposing of the present application, may not be construed as expressions on the merit of the case.
No order as to costs.
Records of the lower Court be sent forthwith.