Omprakash vs Basant & Ors.

Heard.

Even though the cause list shows that the respondent No.5 is not served, the parties agree that it is the respondent Nos.6 and 7, who are the contesting parties and therefore, the matter is heard and decided finally.

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.

The present petition challenges the order dated 29.08.2024 passed by the learned Joint Civil Judge, Gondia, below Exhibit 34 in RCS No.134/2022.

As can be seen from the narrations made in the petition that the petitioner before this Court is the original plaintiff who filed a suit for partition and separate possession bearing RCS No.134/2022. The said suit was filed claiming 1/6th share in favour of the plaintiff. In the said suit, the defendants were and more particularly, defendant No.1 was the real brother of the present petitioner i.e. the original plaintiff. In the said suit, the respondent Nos.6 & 7 filed an application for intervention under the provisions of Order I Rule 10 of the Code of Civil Procedure. The said application was filed on a premise that the respondent Nos.6 and 7 have already entered into an agreement to sell with the original defendant No.1 i.e. respondent No.1 herein. The said application came to be allowed vide the impugned order which is challenged in the present petition.

I have heard Shri Borkar, learned counsel for the petitioner and Shri Vastani, learned counsel for the respondent Nos.6 and 7 i.e. the original applicants before the trial Court.

Shri Borkar, learned counsel for the petitioner by pointing me out the plaint submits that the suit was filed for partition claiming share of the plaintiff and therefore, there is no need of the present respondent Nos.6 and 7 to be added as a party. He submits that the trial Court has erred in law in allowing the application since the said applicants were neither a necessary party nor a proper party. He also submits that only because the applicants therein have entered into an agreement with the defendant No.1 therein cannot clothe them with a right to intervene in the suit looking at the prayer clauses. He submits that the decree for partition can be effectively passed in absence of the present respondent Nos.6 and 7 and therefore, he prays for allowing the petition by quashing the impugned order.

Per contra, learned counsel for the respondent Nos.6 and 7 the original applicants supports the impugned order. He points me out the agreement entered into between the applicants and the defendant No.1 and states that the entire consideration was fixed at Rs.3,84,51,500/- out of which an amount of Rs.96,00,000/- has already been paid to the respondent No.1. He also points me out the legal notice addressed by the said respondent to the present respondent Nos.6 and 7 stating that a pendency of the suit is an impediment in executing a conveyance and therefore, the agreement stands cancelled.

He points me out the that since a substantial amount of interest has been paid, that would be a pointer to the fact that the suit may proceed in collision and therefore, his substantial interest may be hampered. He points me out the judgment of the Gujrat High Court reported in 1995 SCC OnLine Guj 229, Navnitbhai Harmanbhai Patel Vs. Patel Rameshbhai Ambalal and Ors., to support his submission.

I have considered the contentions canvassed by the learned counsel for the respective parties and also gone through the record. As can be seen from the record the original suit is for partition. The applicants i.e. the respondent Nos.6 and 7 are claiming a right to get impleaded in the suit as intervenors on the basis of an agreement entered into between them and the respondent No.1 herein on 14.11.2022. It can also be seen that the even when the agreement was entered into on such date, a suit for partition was already pending, it being filed on 06.06.2022.

As can be seen from the agreement in question, there is no averment regarding the pendency of the suit in the agreement and going by that logic, the respondent Nos.6 and 7 can at least prima facie be said to be a bonafide purchaser. The fact that the respondent Nos.6 and 7 have parted with a valuable consideration of his Rs.96,00,000/- is not in dispute since it is not denied by anybody. In the background of the said facts, if the legal notice sent by the respondent No.1 is perused, it does not refer to the receipt of the substantial amount of Rs.96,00,000/- and goes on to cancel the agreement only on a specious premise that the suit filed by the present petitioner is pending. The Hon’ble Gujrat High Court had an occasion to deal with such type of situation wherein in a reported judgment as has been pointed out by the learned counsel for the respondents. The said Hon’ble High Court after considering the principle of dominus litus has went on to record that its not a straight jacket formula that in a partition suit only the coparcener has to be a parties.

In my considered opinion, Order I Rule 10 of the Code of Civil Procedure do not put fetters on the Court to add someone as parties who have necessarily substantial interest in the subject matter of the suit. Sub-Rule 2 of Order I Rule 10 gives unlimited powers to the Court to add such persons as parties whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settled all the questions involved in the suit. It is however, true that the respondent Nos.6 and 7 need not be a necessary party. But the fact remains that they have parted with a substantial consideration and looking to the stand taken by the defendant No. 1 in the legal notice, in my considered opinion, the presence of the said respondents would be just and proper for adjudicating the suit.

In that view of the matter, the trial Court has considered the said aspect in a right direction. No perversity is found in the order. The writ petition is dismissed. Rule stands discharged.