Page No.# 1/14 GAHC010099412025 2025:GAU-AS:17333 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/1504/2025 HASEN ALI S/O- LATE NADU SK, VILL- DAYARCHAR, PO- FEKAMARI, PS SOUTH SALMARA, DIST- DHUBRI, ASSAM THE POWER OF ATTORNEY HOLDER, WHO REP. THE APPL NOS. 2 TO 4 2: ABDUR RAHMAN S/O LATE HANIF UDDIN RESIDENT OF VILLAGE 7 NO. BASHBARI PS BIJNI DIST BONGAIGAON ASSAM 3: NUR JAHAN BIBI D/O LATE HANIF UDDIN RESIDENT OF VILLAGE 7 NO. BASHBARI PS BIJNI DIST BONGAIGAON ASSAM 4: MRS. AMENA BEWA W/O LATE MOZUL SK RESIDENT OF VILLAGE WILLIAM NAGAR BAZAR PS WILLIAM NAGAR DIST EAST GARO HILLS MEGHALAY VERSUS MOHAMMAD ALI S/O- LATE KITAB ALI, R/O- VILL- KANAIMARA PART II, PS SOUTH SALMARA DIST- DHUBRI, NOW SOUTH SALMARA MANKACHAR, ASSAM 2:ANOWAR HUSSAIN S/O MOHAMMAD ALI R/O- VILL- KANAIMARA PART II PS SOUTH SALMARA DIST- DHUBRI Page No.# 2/14 NOW SOUTH SALMARA MANKACHAR ASSAM 3:MONIRUZZAMAN S/O MOHAMMAD ALI R/O- VILL- KANAIMARA PART II PS SOUTH SALMARA DIST- DHUBRI NOW SOUTH SALMARA MANKACHAR ASSAM 4:MOFIDUL SK S/O MOHAMMAD ALI R/O- VILL- KANAIMARA PART II PS SOUTH SALMARA DIST- DHUBRI NOW SOUTH SALMARA MANKACHAR ASSA Advocate for the Petitioner : MS. B. HAZARIKA, MS. R CHOUDHURY Advocate for the Respondent : MR. SURAJIT DAS (R-1 TO 4), MR. P P DAS(R-1 TO 4) BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 15.12.2025 1. Heard Ms. R. Choudhury, learned counsel for the applicant/appellant as well as Mr. S. Das, learned counsel for the respondent nos.1 to 4. 2. The applicant/appellant, namely, Hasen Ali, has filed this application under Order I Rule 10(2), R/W Section 151 of the Code of Civil Procedure, 1908 (CPC, for short) for impleadment of opposite parties no.1 to 4 as respondent nos. 4 to 7 in the connected RSA/160/2024. Page No.# 3/14 3. It is submitted on behalf of the applicant/appellant that inadvertently, there was an error wherein the respondent nos.1 to 4 have not been impleaded as parties to RSA/160/2024. They are necessary parties as T.S No.431/2007 was partly decreed in favour but no order of recovery of possession was passed relating to the suit land which was held to be under the ownership and possession of respondent nos.1 to 4, who were arrayed as respondent nos.5 to 8 in the earlier title suit no. T.S No.431/2007. 4. The petitioner has relied on the decision of this Court in Somnath Banerjee Vs. Arati Rani Chakraborty and Anr. reported in (2010) 6 GLR 295, wherein it has been held as under : 10. To appreciate the submissions of the learned counsel of the petitioner, it would be proper for this court to reproduce the provisions of order 1, rule 10(2), CPC which is accordingly reproduced hereunder : "10(2). Court may strike out or add parties. - The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the Page No.# 4/14 questions involved in the suit, be added.” 11. From bare reading of the aforesaid provisions, it appears that the object of the Rule is to bring before the court at the same time all the persons who are parties to dispute relating to one subject-matter so that the dispute may be determined at the same time without delay, inconvenience and expenses of separate action and trials. More so, sub-rule (2) of rule 10 gives a description to the court to meet every case of defect of parties. A Division Bench of this court in State of Assam v. Basanta Burman, AIR 1985 Gau. 13, taking note of order 1, rule 10, CPC held that "order 1, rule 10, CPC provides, inter alia, for adding parties or transposing plaintiff as defendant or defendant as plaintiff for effectually and completely adjudicating the disputes. It appears to us, on perusal of order 1, rule 10, that even mistake committed by a party in arraying parties may be rectified by the court, rather it is the duty of the court to see that parties are properly arrayed". 12. In Hardeva v. Ismail and Others, AIR 1970 Raj. 167, a Full Bench of Rajasthan High Court while deciding a revision petition considered the provision of order 1, and held that order 1, rule 9, CPC lays down that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and the court Page No.# 5/14 may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Rajasthan High Court in the aforesaid decision also considered the decision of a Full Bench of the Allahabad High Court in Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All. 18 (FB) wherein the question arose for determining who is necessary party to a proceeding and what should be the test for such determination. The Allahabad High Court in Bhagwan Das (supra) noted that there are two tests - (1) there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and (2) it should not be possible to pass an effective decree in the absence of such a party. The aforesaid decision of the Allahabad High Court was also approved by the Apex Court in Deputy Commissioner, Hardoi in-charge Court of Wards, Bherawan Estate v. Rama Krishna Narain, AIR 1953 SC 521. 13. On scrutiny of the provisions of the order 1, rule 10(2), CPC as well as law reports as stated, supra, this court is of considered opinion that when the plaintiff failed to implead the necessary parties in the suit either for mistake or for unawareness about the persons who would be the necessary Page No.# 6/14 parties, then also the court can ask the parties to implead those persons as a party by way of impleadment exercising its discretionary power to decide the suit. In the instant case, it is the admitted position that the petitioner, the defendant No. 2 in the suit, made an application for framing additional issues, inter alia, whether the suit is bad for non-joinder of the legal heirs of late Haranath Banerjee and whether M/s. Emporium, a business firm, is a tenant under the plaintiff in respect of the suit premises, which was allowed by the trial court and when the issues relating to non-joinder of all legal heirs of the late Haranath Banerjee, the original tenant, was framed, it was the duty of the court to allow the plaintiff, the respondent No. 1 to implead the legal heirs of late Haranath Banerjee as defendants. Unless those persons are made party, then the plaint would be non-suited so far as those newly impleaded persons are concerned and even if a decree is passed by the trial court allowing the suit, then those legal heirs might have come to challenge the decree and if the contention of the petitioner, inter alia, that the suit premises was taken by his father, not by the defendant No. 1, the firm, in that case, the object of order 1, rule 10(2), CPC would be frustrated. It is also to be noted that the plaintiff in her plaint did not make any prayer against any other person and the defendant petitioner also paid rent to the plaintiff respondent after the death of his father on occupation of the suit premises. Page No.# 7/14 Therefore, it cannot be said that the plaintiff respondent committed any wrong by not making the other legal heirs of late Haranath Banerjee as party. It is the defendant petitioner who made prayer for framing additional issues for which the plaintiff respondent was forced to implead the other legal heirs of his father as party in the suit. 14. Now question remains as raised by Mr. Bhowmik, learned counsel or the petitioner that whether the words used by the Legislature in sub-rule (2) of rule 10, "at any stage of the proceedings" do not empower the trial court to allow the plaintiff to implead the legal heirs of the deceased Haranath Banerjee at the belated stage of the argument considering the facts and circumstances of the case. From the plain language used by the Legislature in sub-rule (2) of rule 10 of order 1, CPC, inter alia, it appears that the court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions Page No.# 8/14 involved in the suit, be added, meaning thereby even the court has the power to implead a person either as plaintiff or as defendant without any application from either side of the parties, if the presence of such persons is necessary to adjudicate upon and settle all the question involved in the suit effectually and completely. It also further appears that at any stage of the proceedings', according to this court, not only at the stage of argument, even after completion of the trial and decree is passed and the said decree is challenged by way of an appeal, at that stage also, as 'at any stage' includes appellate stage also, hence, the court has the power to pass an order for impleadment of necessary party considering the facts and circumstances of the case as the appeal is the continuation of the proceeding of the trial court, i.e., the suit. Unless there is specific prohibition imposed by the Legislation debarring the court to pass an order for impleadment in the interest of justice, the court has the wide discretion for passing an order for impleadment of the necessary party which in the instant case, the learned trial court did. 15. The aforesaid views of this court get support from the decision of the High Court of Jammu and Kashmir in Hardatt Sharma v. M/s. Jaikishen Shamlal & Sons and Others, AIR 1983 J&K 29 wherein the learned Single Judge of the said High Court Page No.# 9/14 while discussing the word "at any stage of the suit" held that an appeal being the continuation of the suit, a person may be added as a party to it, even at the stage of the appeal, provided his addition is necessary "in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit". A Division Bench of the Delhi High Court also considered the aforesaid aspect in the case of Gurmauj Saran Baluja v. Mrs. Joyce C. Salim and Ors., AIR 1990 Del. 13 while deciding an appeal filed by the plaintiff against the order of the learned Single Judge allowing an application of one Kaka Singh filed under order 1, rule 10, CPC for impleading him as defendant in the suit took note of the decision of the Apex Court in Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 and ultimately observed that "the contention of the plaintiff that the application which resulted in the impugned order was filed after a great deal of delay was raised before the learned Single Judge who negatived the same while accepting the explanation of Kaka Singh as to why he could file the application only at the stage when the case was ripe for trial. We would not like, without more, to interfere in the discretion exercised by the learned single Judge which is judicial. There is no requirement of law that such an application must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision. Sub-rule (2) of rule 10 of order 1, of the Code provides that the court can add a Page No.# 10/14 defendant at any stage of the proceedings" Ultimately, with the aforesaid observation, the Delhi High Court dismissed the appeal. This court has no hesitation "that at any stage of the proceedings" means till continuation of the proceedings even up to the belated stage. 5. The learned counsel for the applicant/appellant has also relied on the decision of this Court in State of Assam Vs. Basanta Burman, reported in (1985) 0 AIR (Gau) 13, wherein it has been held that : 3. In Section 21 of the Limitation Act we find that where a new party is substituted or added, either as plaintiff or defendant, if the Court is satisfied that the omission to include the new plaintiff or defendant was due to mistake in good faith, the Court may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. However, it is not the case of adding new parties. It is seen that when a new party is added or substituted and the omission to add or substitute, if found to be a mistake done by the party, the Court has power to direct as regards the added plaintiff or defendants that the suit was instituted by or against them on any earlier date. As such, genuine omission or mistake in adding parties is not only excused but the Court may direct that they were parties to the proceedings from the date Page No.# 11/14 of the institution of the suit, provided the Court finds mistake done was in good faith. In the instant case counsel for the appellant owned the mistake in wrongly describing the Police Officers as Pro forma Respondents instead of co-appellant Even accepting the spirit behind Section 21 of the Limitation Act, 1963, there is no dispute that it was a bona fide mistake committed by learned Govt. Advocate. As such we can even add or substitute the Police Officers as co-appellants and direct that the appeal was filed by the substituted appellants from the date of filing of the appeal. 4. That apart, Order 1 Rule 10, C. P. C. provides, inter alia, for adding parties or transposing plaintiff as defendant or defendant as plaintiff for effectually and completely adjudicating the disputes. It appears to us, on perusal of Order 1 Rule 10, that even mistake committed by a Party in a arraying Parties may be rectified by the Court, rather it is the duty of the Court to see that parties are properly arrayed. We also find that under Order 41 Rule 4 where a decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. 5. Further should we punish the litigants for the mistake Page No.# 12/14 committed by the lawyer? This question came up before the Supreme Court under different situations. In Rafiq and Another Vs. Munshilal and Another, their Lordships observed : "The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative ..........we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted." In Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4 SCC 574 and in Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, their Lordships expressed that if there was mistake committed by the lawyer; the parties should not suffer. 6. The learned counsel for the applicant/appellant has also submitted that as per Section 107(2) of the CPC, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as conferred and imposed by the Court on Courts of original jurisdiction in respect of suit instituted therein. Thereby, the submission of the learned counsel for the respondents that this application is barred by limitation holds no water as this application is under Order I Rule 10(2) of the CPC. Page No.# 13/14 7. Per contra, the learned counsel for the respondent has also filed an objection and has submitted before this Court that the Proviso 2 Order 41 Rule 20 debars from adding any respondent under this rule after the expiry of period of limitation for appeal, unless the Court for reasons to be recorded allows that to be done, on such terms as to costs as it thinks fit. 8. In this case, no prayer has been made to condone the delay in filing the application for impleading the respondent nos.1 to 4. 9. It is further submitted that allowing impleadment at such a later stage amounts to altering the very constitution of the appeal after expiry of the limitation and would seriously prejudice the respondents. 10. It is further submitted that respondents have earlier been impleaded in the original title suit and thus, the decision relied upon by the applicant in Somnath Banerjee’s Case (Supra) as well as in the case of Basanta Burman (Supra) is not relevant to this case. 11. It is also submitted that as the parties are not new to the suit, this application under Order I Rule 10(2) is not maintainable. 12. I have considered the submissions at the Bar with circumspection. 13. It is true that the decision in Basanta Burman’s case (Supra) is relating to parties who were not including initially whereas in this case, the respondent nos.1 to 4 were parties to the original title suit and similarly, the decision in Somnath Banerjee’s case (Supra) is also not relevant to the Page No.# 14/14 instant case, as in Somnath Banerjee’s (Supra) case, the parties were not impleaded initially whereas in this case, the respondent nos.1 to 4 were parties to the suit. Moreover, in this case no prayer to condone delay has been made to consider the impleadment of respondent nos.1 to 4 even as per Order 41 Rule 20 of the CPC. 14. It is true that even at the appellate stage, parties may be added but the instant case is not a case of adding new parties but a case of impleading the parties who were already parties in the original title suit. 15. In fact, the Court may add parties on its own, even without a formal application under Order I Rule 10(2) of the CPC. As respondent nos.1 to 4 were already parties to the original title suit i.e. T.S No.431/2007 as respondent nos,5,6,7 and 8, the application under Order 1 Rule 10(2), R/W Section 151 of the CPC is hereby stands rejected. 16. In terms of the above observation, this interlocutory application is disposed of. JUDGE Comparing Assistant