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2024 Supreme(Raj) 878
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Rekha Borana, J.
Smt. Sushila W/o Late Chandmal Bagchar and ors. – Petitioners
Versus
Smt. Tara Devi W/o Parasmal Runiwal – Respondents
S.B. Civil Writ Petition No. 14350/2024
Decided On : 23-09-2024
Advocate Appeared:
For the Petitioner: Mr. Suresh Shrimali with Mr. Rishabh Shrimali
For the Respondent: Mr. Narendra Thavi with Mr. Mahendra Thanvi
IMPORTANT POINT
A decree cannot be nullified without the necessary parties being included in the proceedings, ensuring all relevant interests are represented.
Headnote:
Impleadment - Writ Petition - Order 1 Rule 10, CPC - The court emphasized the necessity of parties in a suit, clarifying that a decree cannot be nullified without their inclusion, thus allowing the petitioners to be impleaded.
Fact of the Case:
The petitioners sought to be impleaded in a partition suit filed by Tara Devi, arguing that their predecessor's decree from 1989 was still relevant. The trial court rejected their application, leading to the writ petition.
Finding of the Court:
The court found that the trial court erred in rejecting the impleadment application, as the petitioners were necessary parties to the suit concerning the same property.
Issues: Whether the legal representatives of Chand Mal were necessary parties to the partition suit filed by Tara Devi.
Ratio Decidendi: The court held that the decree from 1989 was not void in its entirety and that the petitioners had a right to be heard in the current proceedings.
Result: The writ petition is allowed, and the trial court's order is quashed, permitting the petitioners to be impleaded in the suit.
ORDER :
Rekha Borana, J.
1. At the very inception, it is relevant to note that although the present matter was listed in the cause list of 20.09.2024, on a permission been sought by learned counsel for the petitioners on 17.09.2024, the same was granted for the matter to be listed on 18.09.2024. This is for the reason that on 09.09.2024, the Court had directed the matter to be listed on 17.09.2024 but the same was not listed on the said date.
2. The present writ petition has been preferred against the order dated 03.08.2024 (Annexure-8) passed by the District Judge, Bhilwara in Civil Suit No.147/2023 whereby the application under Order 1 Rule 10, CPC as preferred by the petitioners applicants was rejected.
3. Before proceeding with the adjudication of the present petition, a brief of the facts is essential:
i) In the year 1982, a suit was preferred by one Chand Mal for partition against legal representatives of Bhanwarlal. The said suit was decreed by way of a compromise vide judgment and decree dated 28.08.1989.
ii) In the year 2003, Tara Devi, one of the legal representatives of Bhanwarlal i.e. his daughter, preferred a suit with the relief that the decree dated 28.08.1989 be set aside to the extent of her share as the compromise decree as obtained by the parties therein, was without her consent and she was not a signatory to the compromise.
iii) The said suit as preferred by Tara Devi was subsequently converted into an application in terms of law and the said application was ultimately decided on 17.08.2023 while declaring the decree dated 28.08.1989 to be void to the extent of share of Tara Devi. However, qua the other reliefs, the plaint was returned to her with liberty to file a fresh suit.
iv) In pursuance to the liberty as granted vide order dated 17.08.2023, Tara Devi preferred the present suit for partition of the complete property on 04.10.2023.
v) However, the legal representatives of Chand Mal (Chand Mal having expired) were not impleaded in the present suit and hence, an application under Order 1 Rule 10, CPC for impleadment was preferred on behalf of the legal representatives of Chand Mal with the specific submission that the earlier suit preferred by Chand Mal, husband of present petitioner No.1 and father of petitioners No.2 to 7 for partition qua the same property in question had already been decreed by way of compromise and hence, in the present suit for partition as preferred by plaintiff Tara Devi qua the same property, the petitioners applicants are definitely necessary parties.
It was further submitted that vide judgment and decree dated 17.08.2023, judgment and decree dated 28.08.1989 was set aside/declared void only to the extent of share of Tara Devi and the other part of the decree was maintained. Meaning thereby, the decree in favour of Chand Mal was maintained. Evidently, the present suit had been preferred by Tara Devi for partition of the same property qua which the judgment and decree dated 28.08.1989 (compromise decree) had already been passed.
vi) The learned Trial Court proceeded on to reject the application as preferred on behalf of the applicants with the finding that when once the judgment and decree dated 28.08.1989 had been declared void vide order dated 17.08.2023, the applicants could not be termed to be necessary parties in the present suit as the same was preferred qua plot No.41 only and not the complete property which was a subject matter of the earlier suit.
4. Learned counsel for the petitioners submitted that the finding as recorded by the learned Trial Court is erroneous on the face of it as the decree dated 28.08.1989 had not been declared to be null and void in toto but had been declared so, to the extent of share of Tara Devi only. Further, it is clear on record that the suit preferred by Chand Mal in the year 1982 for partition was qua plot No.41 only and the present suit is also qua the same property.
5. Learned counsel for the petitioners further submitted that it is clear on record
