- (1.) The present petition has been preferred under Article 227 of the Constitution of India mainly against the order passed by learned Sub-Judge V, Dhanbad dated 19th September, 2008 in Title (Partition) Suit No. 07/2004 in an application preferred by the present petitioner under Order 1 Rule 10 (2) of the Cole of Civil Procedure, which has been dismissed.
(2.) On 5 th May, 2009 upon hearing the counsel for the petitioner, notice was issued and bailable warrant thereafter was also issued upon respondent Nos. 1, 2, 3, 4, 5, 6, 12, 13, 15, 20 and 21 because they have refused to accept the notice of this Court. Now, learned counsel Mr. Sumeet Gadodia is appearing on behalf of respondent Nos. 12, 13, 15, 16 and 20 and he will file his vakalatnama during course of the day. Though, respondent Nos. 1, 2, 3,5, 6 and 21 are served with the bailable warrant of sum of Rs. 10,000/-, but, nobody have chosen to remain present before this Court in person or through advocate.
(3.) Having heard learned counsels for both the sides and locking to the facts and circumstances of the case, I hereby quash and set aside the order passed by learned Sub- Judge V, Dhanbad dated 19th September, 2008, in an application preferred by the present petitioner under Order 1 Rule 10 (2) of C.P.C. in Title (Partition) Suit No. 07/2004 mainly for the following facts and reasons: (i) It appears from the facts of the case that present respondent Nos. 1 to 5 are the original plaintiffs, who have instituted Title (Partition) Suit No. 07/2004 against rest of the respondents, who are the original defendants, before learned Sub-Judge V, Dhanbad. (ii) It also appears from the facts of the case that the present petitioner claims right, title and interest upon part of the suit property and, therefore, he preferred an application to implead him as a party defendant under Order 1 Rule 10 (2) of C.P.C, which has been dismissed and, therefore, the present writ petition has been preferred. (iii) It also appears from the facts of the case that the present petitioner is having an agreement to sale dated 15th November, 1994 in his favour for part of the land involve in the Title (Partition) Suit No. 07/2004. Agreement to sale was entered into between the power of attorney holder of some of the plaintiffs and some of the defendants of Title (Partition) Suit No. 07/2004. Petitioner is claiming right, title and interest upon the land admeasuring ten acres, which is a suit property of the Title (Partition) Suit No. 07/2004. (iv) It appears that petitioner has also filed as many as four different suits bearing Title Suit Nos. 10/2004, 18/2004, 69/2004 and 73/2004 before Sub-Judges, Dhanbad for specific performance against some of the respondents on the basis of agreement to sale dated 15th November, 1994. There are other agreements to sale of different dates. Suffice it to say that all these agreements were before the trial Court in different Title Suits. This aspect of the matter has been lost sight of by the trial Court while dismissing the application preferred by the present petitioner under Order 1 Rule 10 (2) of C.P.C. (v) It also appears that the present petitioner is claiming right, title and interest upon ten acres of land involve in the Title (Partition) Suit No. 07/2004 and, therefore, he ought to have joined as a party defendant. Without joining the present petitioner, no effective decree could be passed by the trial Court after arriving at conclusion of the dispute between the parties. In Title (Partition) Suit No. 07/2004, petitioner ought to have joined as a defendant. This aspect of the matter has not been properly appreciated by the trial Court, which is an error apparent on the basis of the record. (vi) It has been held by Hon'ble Supreme Court in the case of Sumatibai and others v. Paras Finance Co. as reported in (2007) 10 SCO 82 : (AIR 2007 SC 3166) especially in paragraph 14 which reads as under : "14. In view of the aforesaid decisions we are of the opinion that Kasturi case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property dispute. Clearly, such a view cannot be countenanced." (Emphasis supplied) In view of the aforesaid judgment also, the present petitioner ought to have joined as a party defendant in Title (Partition) Suit No. 07/2004. (vii) It has also been contended by learned counsel for the petitioner that the trial Court has passed an order upon an application given under Order XXVI Rule 9 of C.P.C. Court Commissioner was also appointed by trial Court under Order XXVI Rule 9 of C.P.C. for the purpose of elucidating a matter in dispute and the report has been given by the Court Commissioner on 23rd February, 2008 (Annexure 6 to the memo of the present petition) to the effect that the present petitioner is in possession of part of the suit property. This aspect of the matter has also been lost sight of by the trial Court while dismissing the application preferred by the present petitioner. In this matter, this Court surprised that though the trial Court is observing in the order that petitioner has already instituted four suits bearing Title Suit Nos. 10/2004, 18/2004, 69/2004 and 73 / 2004, no care has been taken by the trial Court to appreciate the fact that these suits are based upon various agreements to sale in favour of the present petitioner. In the impugned order, trial Court has observed that as the petitioner could not present the agreement to sale, petitioner's application under Order 1 Rule 10 (2) of C.P.C. is dismissed. Whenever, petitioner is pointing out as many as four suits, at least the trial Court ought to have called for the records of these four suits for its perusal or copy of the plaint could have been demanded from the parties, so that the agreement to sale upon which the petitioner is relying upon in the Title (Partition) Suit No. 07/2004 could have been pointed out. In fact, all these suits ought to have heard together. Some suits have been filed by the petitioner and the Title (Partition) Suit No. 07/2004 has been preferred by respondent Nos. 1 to 5. AH these parties are claiming common land and, therefore, they ought to have heard together. (viii) Learned counsel for the petitioner submitted that a necessary application will be preferred before the trial Court, so that all the five suits may be heard together by one Court. Thus, in view of the aforesaid agreement to sale, of various dates, petitioner is having interest in the suit property in Title (Partition) Suit No. 07/2004. Chances of success Of the present petitioner ought not to have been evaluated at this stage or the chances of the rejection of the claim of the petitioner should not have been evaluated at this stage. At the stage of an application under Order 1 Rule 10 (2) of C.P.C., the trial Court has to look at the fact that if the applicant of an application under Older 1 Rule 10 (2) of C.P.C. can show a fair semblance of title or interest, he can be impleaded as a party defendant.;