An absent co-sharer in a partition suit can be added post-preliminary decree under exceptional circumstances to ensure effective adjudication, reaffirming the necessity for all relevant parties to be included in proceedings.

JUDGMENT :

SHAMPA DUTT (PAUL), J.

1. The revision has been preferred challenging an Order dated 03.06.2024 passed by the Learned Civil Judge (Senior Division) at Birbhum in Title Suit No.76 of 2011.

2. Vide the order under challenge the trial Court while considering the petitioner’s application under Order 1 Rule 10 CPC, held as follows:-

“……..The petitioner stated that the petitioner and their brothers and sisters are the co-sharers of the suit property and possessing their respective shares and same is evident from the report of concern R.I. of BL & LRO submitted in MP case no. 70 of 2017.

It is stated by the petitioner that plaintiffs of the present suit got decree by suppressing the true and actual fact by non-joining the petitioner and her brothers and sisters as parties to the instant suit and as such, the said decree is liable to be set aside. It transpires from the record that instant suit was decreed on contest in part against defendant nos. 1 to 5 and as ex-parte against the other defendants on 19.12.2016. Admittedly, the present petitioner was not made party to the instant suit. The present petitioner filed the instant petition where the final decree application is pending.

As per section 96 of Code of Civil Procedure, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeal from decision of such court.

In the instant case, the present petitioner who raised the plea that she is also co-sharer of the suit property in respect of which preliminary decree has been passed in the instant suit and she has not been impleaded as party and therefore, she has been aggrieved by the order of the preliminary decree, the remedy lies to her to file an appeal as aggrieved person. The court has already passed a preliminary decree it cannot entertain the instant petition and cannot set aside his own decree.

On the basis of above observation, this court is not inclined to allow the petition filed by the petitioner Under Order 1 Rule 10 read with section 151 of C.P.C. dt., 21.01.2019.

Hence, the petition is rejected and disposed of accordingly……..”

3. The petitioner along with his supplementary affidavit has filed a family succession chart, where in it appears that the petitioner herein is also a co-sharer in the suit property but admittedly she was not made a party in the suit for partition, which has been decreed in preliminary form, of which the petitioner has prayed for re-opening.

4. Written notes have been filed by both the parties along with judgments relied upon.

5. The following judgments have been relied upon by the petitioner:-

i. Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited & Ors. (2010) 7 SCC 417

ii. Sumtibai & Ors. vs. Paras Finance Co. & Ors. (2007) 10 SCC 82

iii. S. Pitchai vs. Ponnammal & Ors. 2017 SCC OnLine Mad 37792

iv. Ramader Appala Narasinga Rao vs. Chunduru Sarada, 1975 SCC OnLine AP 160

v. Jadabendra Narayan Choudhury & Ors. vs Shitanshu Kumar Choudhury @ Subhendra Choudhury, 2013 SCC OnLine Cal 610

6. The following judgments have been relied upon by the opposite parties:-

a) Neelakantha Pillai Ramachandran Nair vs. Ayyappan Pillai Kumara Pillai, AIR 1978 Kerala 152

b) Shrimati Bijaya Acharya vs. Shrimati Radhika Bala Mondal & Ors. 1997 SCC OnLine Cal 3

c) Kumari Bilkishben D/o Decd. Ishakbhai A. Kadarbhai vs. Huned Saifuddin, 2011 SCC OnLine Guj 7029

d) Kashed Alli Sardar & Ors. vs. Ms. Hamida Bibi & Ors. AIR 2012 Calcutta 165

7. The Supreme Court in Venkata