Page No.# 1/7 GAHC010212782024 2025:GAU-AS:5221 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/222/2024 ON THE DEATH OF PRABIN CHANDRA DEKA HIS LEGAL HEIRS AND ANR RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 1.1: SRI JAYANTA DEKA S/O- LATE PRABIN CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 1.2: SMTI. RUMI DEKA D/O- LATE PRABIN CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 1.3: SMTI. PAPORI DEKA D/O- LATE PRABIN CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 1.4: SMTI. MENAKSHI DEKA D/O- LATE PRABIN CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI Page No.# 2/7 P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 2: SRI PRADIP CHANDRA DEKA S/O- LATE PRABHAT CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 VERSUS ON THE DEATH OF LATE KANU PRIYA DAS HIS LEGAL REP. SRI JAYANTA DAS @ JAY JAYANTA DAS AND 2 ORS S/O- LATE KANU PRIYA DAS R/O- ADABARI TINIALI P.S. JALUKBARI P.O. PANDU GUWAHATI- 781812 DISTRICT- KAMRUP (M) ASSAM 2:SRI ASHWINI KUMAR DEKA S/O- PRABHAT CHANDRA DEKA RESIDENT OF BAIHATA CHARIALI P.O. BAIHATA CHARIALI KAMRUP (M) ASSAM PIN- 781381 3:ON THE DEATH OF GUNAVI RAM DAS HIS LEGAL HEIR RESIDENT OF PADAMBARI TETELIA P.O. JALUKBARI P.S. JALUKBARI DIST- KAMRUP (M) ASSAM- 781012 3.1:KAVERI DAS WIFE OF LATE GUNAVI RAM DAS RESIDENT OF PADAMBARI TETELIA P.O. JALUKBARI P.S. JALUKBARI DIST- KAMRUP (M) ASSAM- 781012 Page No.# 3/7 3.2:ANGONAA DAS DAUGHTER OF LATE GUNAVI RAM DAS RESIDENT OF PADAMBARI TETELIA P.O. JALUKBARI P.S. JALUKBARI DIST- KAMRUP (M) ASSAM- 781012 3.3:MRINAV DAS SON OF LATE GUNAVI RAM DAS RESIDENT OF PADAMBARI TETELIA P.O. JALUKBARI P.S. JALUKBARI DIST- KAMRUP (M) ASSAM- 781012 ------------ Advocate for : MR. A K PURKAYASTHA Advocate for : MR. P S DEKA(R-1) appearing for ON THE DEATH OF LATE KANU PRIYA DAS HIS LEGAL REP. SRI JAYANTA DAS @ JAY JAYANTA DAS AND 2 ORS BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 30.04.2025 Heard Mr. A.K. Purkayastha, learned counsel for the petitioner. Also heard Mr. B.K. Bhagawati, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India, read with Section 115 of the CPC, the petitioners have challenged the correctness or otherwise of the order dated 30.04.2024, passed by the learned Civil Judge (Junior Division) No. 1, Kamrup(M) at Guwahati, in Misc. (J) Case No. 188/2024, in Title Suit No. 58/2019. 3. It is to be noted here that vide impugned order dated 30.04.2024, the Page No.# 4/7 learned Civil Judge (Junior Division) No. 1, Kamrup(M) at Guwahati (‘trial Court’, for short) had dismissed the petition No. 2292, filed by the defendant side under Order 1 Rule 10(2) of the CPC for striking out the names of defendant Nos. 1, 1(a), 1(b), 1(c) and 1(d) and defendant No. 2 on being joined improperly. 4. Mr. Purkayastha, learned counsel for the petitioners submits that the petitioners are defendants, being arrayed in Title Suit No. 58/2019, and in the aforesaid petition, the petitioners have clearly taken a stand that no relief is being claimed by the plaintiffs/respondents herein against them and they have no objection in the event of passing any decree by the learned trial Court, and that they are not a proper party in the aforementioned suit, and being improperly joined, they are liable to be strike out from the array of the said suit, and therefore, it is contended to allow this petition. 5. Controverting to the submission of Mr. Purkayastha, learned counsel for the petitioners, Mr. Bhagawati, learned counsel for the respondents submits that the petitioner have not challenged the final order and as such, this petition becomes infructuous. Mr. Bhagawati also submits that at this stage, it is difficult to contend that the petitioners are not necessary party and even the plaintiffs also cannot say at this stage that they are not necessary party as there was common power of attorney and common sale deed. Mr. Bhagawati further submits that the defendant No. 1 died along back and the learned counsel for the petitioners has not provided the exact date of death of the defendant No. 1. Mr. Bhagawati further submits that the documents are common, power of attorney is common, no-objection certificate issued by the GMC authority is also common, and the petitioners have not filed any objection before the learned trial Court and for mala fide reason, they have filed the present petition after several months, and that the delay is fatal and therefore, it is contended to Page No.# 5/7 dismiss this petition. 5.1. In support of his submission, Mr. Bhagawati has referred to the following decisions of Hon’ble Supreme Court: (i) Baluram vs. P. Chellathangam and Ors., reported in (2015) 13 SCC 579. (ii) Vidur Impex and Traders Private Limited and Ors. vs. Tosh Apartments Private Limited and Ors., reported in (2012) 8 SCC 384. 6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 30.04.2024. 7. It appears that in the impugned order dated 30.04.2024, the learned trial Court had observed that it cannot be decided or ascertained at this stage whether the defendant Nos. 1, 1(a), 1(b), 1(c), 1(d) and the defendant No. 2 are necessary parties or proper parties and striking out of their names might cause prejudice to the plaintiffs/respondents and therefore, it had rejected the same. 8. It is well settled in a catena of decisions of Hon’ble Supreme Court has held that the test for determining whether a party is a necessary party in a suit is to be determined as to whether any relief is being claimed by the plaintiffs against such party or not. Reference in this context can be made to the decision of Hon’ble Supreme Court in the case of Ramesh Kundanmal vs. Municipal Corporation of Greater Bombay, reported in (1992) 2 SCC 524. In the said case, in Paragraph 6, Hon’ble Supreme Court has observed as under:- Page No.# 6/7 “6.......................A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.” 8.1. Thus, these tests are – (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (ii) no effective decree can be passed in the absence of such party. 9. In the case in hand, in no uncertain term, the petitioners have stated that they are not necessary party as no relief is being claimed against them by the plaintiffs/respondents and they have no objection in the event of passing any decree by the learned trial Court in the aforementioned suit. 10. Under the given facts and circumstances, the matter stands remanded to the learned trial Court to examine the issue again in the light of the proposition of law laid down in the case of Ramesh Kundanmal (supra) and also in the light of the submissions advanced at the bar and noted herein above, and to pass a fresh order upon the petition No. 2292, filed under Order 1 Rule 10(2) of the CPC. 11. The impugned order dated 30.04.2024, is accordingly set aside and quashed. Page No.# 7/7 12. In terms of above, this revision petition stands disposed of. JUDGE Comparing Assistant