Court’s Decision
The Calcutta High Court set aside the order of the trial court that had rejected the petitioner’s application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure. The trial court had refused to implead the petitioner—a co-sharer in a partition suit—on the ground that a preliminary decree had already been passed. The High Court ruled that the petitioner, who was admittedly a co-sharer and not made a party to the partition suit, was a necessary party and must be impleaded. Consequently, it directed the reopening of the preliminary decree and allowed the impleadment of the petitioner in the suit.
Facts
The petitioner filed a revision application challenging the trial court’s order dated 03.06.2024 which had dismissed her application under Order 1 Rule 10 CPC. The suit in question was a partition suit, and a preliminary decree had been passed on 19.12.2016. The petitioner, despite being a co-sharer, was not made a party to the original suit. She contended that the decree was obtained by suppressing material facts and that her non-joinder amounted to fraud. The trial court refused to allow her impleadment, stating that her remedy was to appeal the decree, not seek impleadment.
Issues
- Whether a co-sharer who was not impleaded in a partition suit can be added as a party after the passing of a preliminary decree.
- Whether the preliminary decree in a partition suit can be reopened in such a scenario.
- Whether exclusion of a necessary party from the partition proceedings amounts to fraud warranting reopening of the suit.
Petitioner’s Arguments
The petitioner submitted that she was a co-sharer in the suit property and was deliberately excluded from the partition suit. She argued that the preliminary decree was obtained by suppressing material facts and without joining all necessary parties, which vitiates the decree as it amounts to fraud. She cited multiple precedents to argue that courts have the power to reopen preliminary decrees in exceptional cases and to implead necessary parties even at a later stage of the proceedings. She relied upon the judgments in Mumbai International Airport, Sumtibai, and Phoolchand to support her contention that the absence of a necessary party vitiates the decree and that partition suits can accommodate second preliminary decrees where required.
Respondent’s Arguments
The opposite parties contended that the suit had already culminated in a preliminary decree and that the petitioner’s application was not maintainable. They argued that the petitioner, being a non-party, should have challenged the decree through an appeal under Section 96 CPC instead of seeking impleadment. They relied upon decisions such as Kashed Alli Sardar and Neelakantha Pillai, arguing that reopening a preliminary decree would amount to unsettling settled rights and should not be permitted.
Analysis of the Law
The High Court reiterated the legal position that a preliminary decree in a partition suit is not final and may be modified or reopened in exceptional circumstances. It referred to the decision in Phoolchand v. Gopal Lal, where the Supreme Court held that a second preliminary decree could be passed in partition suits in appropriate circumstances. The Court also discussed the principles enunciated in Mumbai International Airport and Moreshar Mahajan, which laid down the criteria for impleadment of necessary and proper parties under Order 1 Rule 10 CPC.
Precedent Analysis
The Court referred to several key decisions:
- Phoolchand v. Gopal Lal: Established that more than one preliminary decree could be passed in partition suits if events occur after the first decree necessitating changes in shareholding.
- Mumbai International Airport v. Regency Convention Centre: Clarified the difference between necessary and proper parties and held that failure to implead a necessary party is fatal.
- Kashed Alli Sardar v. Hamida Bibi: Held that impleadment after preliminary decree is permissible in exceptional cases but not if it means reopening the decree.
- Venkata Reddy v. Pethi Reddy: Declared preliminary decrees to have finality for issues adjudicated therein, unless reversed in appeal.
- Moreshar Mahajan v. Vyankatesh Sitaram: Reinforced that a decree passed in absence of a necessary party is liable to be reopened.
Court’s Reasoning
The Court found that the petitioner was indeed a co-sharer and a necessary party to the suit. Her non-inclusion in the original proceedings amounted to suppression of material facts. The Court stated that “when a decree is not final and a person’s right as to share in the property has been left out intentionally, the same amounts to fraud and ends of justice requires that such wrong is rectified”. It further noted that the matter had not reached the stage of final decree and there was no legal bar to reopening the preliminary decree or passing a second preliminary decree in appropriate cases. Thus, it held that the trial court erred in dismissing the petitioner’s application.
Conclusion
The High Court allowed the revision petition, set aside the trial court’s order dated 03.06.2024, and directed the reopening of the preliminary decree. It further directed that the petitioner be impleaded as a party and the trial court proceed to adjudicate the suit afresh, allowing parties to adduce evidence if necessary. The Court held this to be an exceptional case where reopening of the preliminary decree was justified to ensure complete justice.
Implications
This judgment affirms that courts have the power to reopen preliminary decrees in partition suits in exceptional circumstances. It reinforces that impleadment of necessary parties is essential for effective adjudication, even if preliminary decrees have been passed. It also clarifies that fraud and suppression of facts are sufficient grounds to revisit earlier orders.
Referred Cases and Their Relevance
- Phoolchand v. Gopal Lal: Held that second preliminary decrees can be passed in partition suits if required.
- Mumbai International Airport v. Regency Convention Centre: Explained the test for impleadment of necessary and proper parties.
- Venkata Reddy v. Pethi Reddy: Clarified the finality attached to preliminary decrees.
- Kashed Alli Sardar v. Hamida Bibi: Cautioned against reopening preliminary decrees unless justified by exceptional facts.
- Moreshar Mahajan v. Vyankatesh Sitaram: Reaffirmed that a suit without a necessary party is defective and can be reopened.
FAQs
- Can a co-sharer be impleaded after a preliminary decree is passed in a partition suit?
Yes, if exclusion of the co-sharer amounts to fraud or injustice, the court can reopen the decree and allow impleadment. - What is a second preliminary decree in a partition suit?
A second preliminary decree may be passed to modify or alter the earlier decree due to changed circumstances or discovery of new necessary parties. - Does failure to implead a necessary party render a decree invalid?
Yes, if a party is a necessary party and was left out, any decree passed in their absence can be challenged and set aside.