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Judgment
Biswaroop Chowdhury,J:
These applications are taken up together for their interconnectiveness.
The petitioner in C O 3702 is a defendant in partition suit being Title Suit 17/2014 pending before Civil Judge (Senior Division) Suri Birbhum and is aggrieved by order dated 16/05/2015 passed by the Learned Judge in rejecting the petition dated 10/03/2015 filed by the applicant Shymal Gupta for addition of party and has assailed the order in this application under Article 227 of the Constitution of India.
The petitioner in C O 1324 of 2021 is the plaintiff in partition suit being Title Suit No. 17/2014 and is aggrieved by the Order dated 19/02/2019 passed by the Learned Judge in allowing the petition filed by the applicants opposite parties no-2 to 5 under Order 1 Rule 10(2) of the Code of Civil Procedure.
The petitioner in C O 1325 of 2021 is also the plaintiff of Title Suit No. 17 of 2014 pending before the Learned Civil Judge (Senior Division) at Suri Birbhum and is aggrieved by Order dated 17/01/2020 passed by the Learned Judge in allowing the petition filed by the applicant Shyamal Gupta the opposite party no-2 for addition of party.
As these orders are passed in the same suit and relates to impleadment of parties they are taken up together for their inter-connectiveness.
Pursuant to the filing of the revisional applications notice was issued upon the opposite parties.
Opposite party in C O 3702 of 2015 appeared and contested the case.
However in C O 1324 of 2021 and C O 1325 of 2021 opposite party no-1 only appeared and other opposite parties did not appear to contest the case.
C O 3702 of 2015 arises from an order passed by the Learned Trial Judge where the Learned Judge dismissed the prayer of one the applicant namely Shymal Gupta for addition of party. Although the applicant whose application was dismissed did not challenge the order passed in the application for addition of party but considering the fact that power under Article 227 of the Constitution is a supervisory power and the same can be exercised suo-moto and the fact the other two revisional applications being C O 1324 of 2021 and C O 1325 of 2021 also arises from orders passed by the Learned Court in the self same suit where the Learned Court was pleased to allow addition of party this of two applicants this application C O. 3702 of 2015 is taken up for consideration. Along with other applications C O. 1324 of 2021 and CO. 1325 of 2021.
Upon perusal of the order dated 16/05/2015 passed by Learned Trial Court it appears that the Learned Trial Court was pleased to dismiss the application for addition of parties by observing and directing as follows:
‘At the very outset of my discussion I would like to say that though the petitioner has applied for getting himself added as a defendant in this case by way of the aforesaid application but no vakalatnama has been filed in support of his said application. Accordingly the said application appears to be defective on the face of it.
Now coming to the merit of the aforesaid petition, it appears that the trial of the suit has already commenced. The plaintiff has already completed his evidence both orally and documentary.
From the evidence of the plaintiff, particularly the impugned deed of gift (Exhibit – 5), it transpires that the mother and the sister of the plaintiff have transferred their share in respect of the suit property in favour of the plaintiff, with a specific recital that the suit property belonged to their predecessor, Lachman Gupta, since deceased. He died leaving behind his wife one daughter and two sons. They inherited his said property in 1/4th share each. Thereafter the wife and daughter of said Lachman Gupta have transferred their 1/4th share, each in favour of the plaintiff. This facts certainly supports the plaintiff’s case that he has about 3/4th share in the suit property and the rest 1/4th share therein belong to the contesting defendant.
Per contra, the defendants evidence is yet to be completed. So far the evidence adduced by the contesting defendant is concerned nothing substantial is coming out to establish the fact that besides the plaintiff and the contesting defendant, there are other legal heirs of said Lachman Gupta. Rather from the evidence of the defendant it reveals that he himself is very much in confusion about the legal heirs of said Lachman Gupta. From his cross-examination it appears that one point of time he is admitting the fact that save and except the plaintiff and the defendant there are no other co-sharers in respect of the suit property, on the very next moment he submits that there are other co-sharers in respect of the suit property.
In such a situation, I am not inclined to disbelieve the plaintiff’s case that the suit property is lying joint only between the plaintiff and the contesting defendant until completion of the trial.
Hence it is
ORDERED.
That the petition dated 10.03.2015 is rejected on contest without any cost, at this stage of the suit.
The case-record is shifted back to its’ P.H. Board.
Fix 09.06.15 for F.H of DW’s if any and payment of costs.’
It further appears from record that the Learned Trial Court again on 17/01/2020, considered a petition filed by the self same applicant Shymal Gupta for addition of party and allowed the same without taking into consideration that earlier application for addition of party was rejected.
Thereafter an application for addition of parties were taken out by the applicants Jhunia Tanti (Gupta) Lila Gupta, Rupa Gupta, Jhilik Gupta who are the opposite parties no – 2 to 5, of the application C O 1324 of 2021.
Learned Trial Court upon considering the application was pleased to pass an order on 19/12/2019 allowing the same and adding the opposite parties no-2 to 5 in C O 1324 of 2021 as parties in Title Suit No 17 of 2014 pending before it. The challenge in C O 1325 of 2021 is the order dated 17/01/2020 passed by the Learned Trial Court in allowing the prayer for addition of party filed by opposite party no-2 when it was earlier rejected by Order dated 16/05/2015. There is no dispute that when an order is passed dismissing an application for addition of party the self same application by the said applicant subsequently is not maintainable unless there are different grounds. However the point for consideration is whether the Learned Trial Court erred in dismissing the application for addition of parties which is under challenge in C O 3702 of 2015.
Upon perusing the order dated 16/05/2015 passed by the Learned Trial Judge it appears that the Learned Trial Judge took into consideration pleadings of the plaintiff and the defendant of T.S. 17 of 2014 and have not addressed himself to the contentions of the applicant along with the proofs submitted. Thus this order cannot be sustained and the same should be set aside.
Now with regard to Order dated 19/02/2019 passed by the Learned Trial Court it appears that the Learned Court while allowing the prayer of the applicants considered the voter identity card of the applicants who are opposite parties in C O 1324 of 2021 and came to a finding that the documents filed by the applicants supports their case that they are heirs of Phagua Gupta who was wife of Laxman Gupta. In a partition suit although it is the duty of the Court to add all co-sharers but it is also necessary in deciding an application for addition of party to briefly discuss as to how the suit property devolved upon the applicant and in what capacity he is claiming to be a co-sharer. These issues are not discussed in the order of the Learned Trial Judge. Thus this order cannot be sustained and the same should be set aside.
The applications for addition of parties filed by opposite party no-2 to 5 in C O 1324 of 2021, namely Jhunia Tanti (Gupta), Lila Gupta, Rupa Gupta and Jhilik Gupta and opposite party no 2 in C O 1325 of 2021 namely Shyamal Gupta should be remitted to Learned Trial Court to be reconsidered in accordance with law.
Hence these applications under Article 227 of the Constitution of India being C O 3702 of 2015, C O 1324 of 2021 and C O 1325 of 2021 stands allowed. Orders dated 16/05/2015, 19/02/2019 and 17/01/2020 passed by Learned Civil Judge (Senior Division) at Suri Birbhum in Title suit No. 17 of 2014 are set aside. The matters are remitted to the Learned Trial Court to reconsider the applications for addition of parties filed by the applicants Jhuma Tanti (Gupta) Lila Gupta, Rupa Gupta, Jhilik Gupta and Shyamal Gupta in accordance with law after hearing all the necessary parties. It is however made clear that this Court has not entered into the merits of the case and all points are kept open.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.