2025:JHHC:23700 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 514 of 2025 ------ Abha Mishra, wife of Late Basant Mishra, resident of Village Chinakuri, D.P.S. P.O. Sunderchak, P.S. Kulti, District Burdwan (W.B.) .... .... …. Petitioner Versus 1. Mahesh Tiwary, son of Late Shivnath Tiwary, resident of Village Mohalla, P.O. Dumka, P.S. Dumka Town, District Dumka 2. Dinesh Tiwary @ Sharma, son of Late Baijnathe Tiwary, resident of Village Mohalla, P.O. Dumka, P.S. Dumka Town, District Dumka .... .... .... Opposite Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner : Mr. Sanjeev Thakur, Advocate For the O.P. No.1 : Mr. Sanjay Kumar Singh, Advocate Mr. Virendra Kumar, Advocate For the O.P. No.2 : Mr. Prakhar Harit, Advocate Order No.04 / Dated : 13.08.2025 Petitioner was impleaded as defendant no.3 in Original Suit No.5/2015 for partition. On account of her non-appearance on 15.03.2016 an ex-parte proceeding was drawn. During the pendency of the partition suit, defendant no.2, the mother of defendant no.3, also died on 22.06.2023. Defendant no.3 filed a petition to be impleaded in the suit under Order I, Rule 10 read with Section 151 of the CPC, and also under Order XXII, Rule 4 read with Section 151 of the CPC for being substituted in place of her mother, which has been rejected against which instant civil miscellaneous petition has been filed. 2. It is submitted by the learned counsel on behalf of petitioner that the petitioner being a coparcener, was a necessary party, but neither she was permitted to be substituted in place of her mother nor was impleaded as a necessary party. It is submitted by the learned counsel that without hearing the petitioner as she is a necessary party, no preliminary decree can be passed. 3. Learned counsel on behalf of plaintiffs/opposite parties defends the impugned order. 4. Having considered the submissions advanced on behalf of both sides, it is evident from the impugned order that petitioner was much impleaded in the partition suit, an ex-parte proceeding was drawn against her on 15.03.2016, but at no stage, the petitioner moved the Court to set 2025:JHHC:23700 aside the ex-parte proceeding under Order IX, Rule 7 of the CPC by showing any sufficient cause. At the fag end of trial, at the stage of argument, instant petition has been filed for being impleaded under Order I, Rule 10 and Order XXII, Rule 4, both read with Section 151 of the CPC. 5. I find force in the argument advanced on behalf of Opposite Parties that this is not a case of non-impleadment in the suit, but having been impleaded as the petitioner did not appear therefore, an ex parte proceeding was drawn against her. In such circumstance, Order I, Rule 10 or Order XXII Rule 4 cannot be invoked as the petitioner had remedy under Order IX Rule 7 of the CPC, which was never availed of within the stipulated time. Had she not been a party, then the question of substitution in place of her mother, would have arisen or for being impleaded under Order I Rule 10 of the CPC. 6. So far, the share of the petitioner in joint family property is concerned, merely because she did not contest the partition suit, does not oust her from share, even if the evidence suggests that she was member of the joint family and was entitled to share in it. A partition suit can be disposed of even ex-parte proceeding against any party by apportioning the admissible share. This Court does not find any infirmity in the impugned order. Civil Miscellaneous Petition is dismissed. Interlocutory Application, if any, is disposed of. (Gautam Kumar Choudhary, J.) Anit