Page No.# 1/5 GAHC010212782024 2025:GAU-AS:5220 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/408/2024 ON THE DEATH OF PRABIN CHANDRA DEKA HIS LEGAL HEIRS JAYANTA DEKA AND 2 ORS 1 (a). JAYANTA DEKA, S/O- LATE PRABIN CHANDRA DEKA 2: 1 (b). RUMI DEKA D/O- LATE PRABIN CHANDRA DEKA 3: 1 (c). PAPORI DEKA D/O- LATE PRABIN CHANDRA DEKA 4: 1 (d). MENAKSHI DEKA D/O- LATE PRABIN CHANDRA DEKA ALL ARE THE R/O- BAIHATA CHARIALI P.O- BAIHATA CHARIALI KAMRUP (M) ASSAM PIN-78138 VERSUS ON THE DEATH OF KANU PRIYA DAS HISS LEGAL REP. JAYANTA DAS @ JAY JAYANTA DAS AGE ABOUT 46 YEARS, S/O- LATE KANU PRIYA DAS, R/O- ADABARI TINIALI, P.S- JALUKBARI, P.O- PANDU, GUWAHATI-12, DIST- KAMRUP (M), ASSAM Page No.# 2/5 Advocate for the Petitioner : MR. A K PURKAYASTHA, MR. JITU SAIKIA,MR. M J BARUAH,MR. A. ALI Advocate for the Respondent : MR. P S DEKA (R-1), MR. B K BHAGAWATI(R-1),MR B S DEKA(R-1) 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 151 of the CPC, the petitioners have challenged the correctness or otherwise of the order dated 27.06.2024, passed by the learned Civil Judge (Junior Division) No. 1, Kamrup(M) at Guwahati, in petition No. 2156/2022, in Title Suit No. 58/2019. 3. It is to be noted here that vide impugned order dated 27.06.2024, the learned Civil Judge (Junior Division) No. 1, Kamrup(M) at Guwahati (‘trial Court’, for short) had allowed the petition No. 2156/2022, thereby substituting the petitioners/defendant Nos. 1(a), 1(b), 1(c) and 1(d) on the death of original defendant No. 1. 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 are not necessary party and no relief is being claimed by the plaintiffs/respondents herein against them, but, the learned trial Page No.# 3/5 Court, on the basis of one petition No. 2156/2022, had allowed impleadment of the present petitioners. Mr. Purkayastha also submits that there was delay in filing the said petition and the impugned order does not reflect condonation of delay and as such, the impugned order is unsustainable and liable to be set aside. 5. Mr. Bhagawati, learned counsel for the respondents has vehemently opposed this petition. He submits that the defendant No. 1 suffered demise and the date of death of the defendant No. 1 was not informed by the petitioners herein, for which a composite petition was filed under Order 22 Rule 4 of the CPC, read with Section 151 of the CPC for substitution of legal heirs of the defendant No. 1; an application under Order 22 Rule 9 of the CPC for setting aside abatement, and also an application under Section 5 of the Limitation Act, 1963, for condonation of delay, and thereafter, considering the facts and circumstances on the record, the learned trial Court, vide impugned order dated 27.06.2024, had allowed the said petition. Mr. Bhagawati also submits that at this stage, without taking evidence, it cannot be said that the petitioners are not necessary party to the suit and therefore, it is contended to dismiss this petition, which is filed after seven years of filing of the suit. 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 Page No.# 4/5 have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 27.06.2024. 7. It appears that the plaintiffs/respondents herein had filed a composite petition under Order 22 Rule 4 of the CPC, read with Section 151 of the CPC; under Order 22 Rule 9 of the CPC and under Section 5 of the Limitation Act, 1963, for substitution of legal heirs of the defendant No. 1, for setting aside abatement and for condonation of delay, respectively and the learned trial Court, vide impugned order dated 27.06.2024, had allowed the said petition presuming that the petitioners are the legal heirs of the defendant No. 1 and their names shall be entered in the cause title of the plaint and also allowed the amendment petition. 8. It is well settled in a catena of decisions of Hon’ble Supreme Court 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:- “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 Page No.# 5/5 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. 2156/2022. 11. The impugned order dated 27.06.2024, is accordingly set aside and quashed. 12. In terms of above, this revision petition stands disposed of. JUDGE Comparing Assistant