IMPORTANT POINT
Impleadment of Intervenor – Major daughter of plaintiff is a necessary party in a suit for partition of ancestral property.

JUDGMENT

B.P. Routray, J.—Heard Mr. A.P. Bose, learned counsel for the Petitioners, Mr. L. Mishra, learned counsel for opposite party no.1 and Mr. B.C. Panda, learned counsel for opposite party no.2.

2. Present CMP is directed challenging order dated 3rd April, 2025 of learned Senior Civil Judge, Baramba passed in CS No.24 of 2016, wherein the prayer of the petitioner under Order 1 Rule 10 C.P.C. has been refused.

3. The suit was filed by present opposite party no.1 praying for partition and other consequential reliefs where opposite parties 2 to 6 are the defendants. The common ancestor of the suit property is one Dasarathi Mishra who is father of the plaintiff and defendants.

4. At the stage of adducing evidences from the side of the plaintiff present petitioner filed a petition under Order 1 Rule 10 CPC praying to intervene in the suit as one of the defendants. Her claim is that she is daughter of the plaintiff born through his first wife and she was deliberately excluded from array of parties though she had already attended majority on the date of filing of the suit.

5. The learned trial court rejected the prayer of the petitioner for intervention on the assumption that she being the daughter of the plaintiff will derive her share through the plaintiff and therefore, is not a necessary party to the suit.

6. The principles relating to intervene as a party to the suit or addition of parties have been well settled. In Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417, it has been stated that:-

“24. We may now give some illustrations regarding exercise of discretion under the said sub-rule.

24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order 1. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.

24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party insofar as the prayer for actual possession.

24.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.

24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides, etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and the court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if D claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of P representing that he is the co-owner with half-share, and P files a suit for specific performance of the said agreement of sale in respect of th