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1991 DIGILAW 124 (ALL)

Rafiullah v. District Judge

1991-01-23

D.K.TRIVEDI

body1991
JUDGMENT D.K. Trivedi, J. - By means of this writ petition the petitioner challenges the order dated 2631990 passed by the opposite party No. 1, District Judge, Faizabad, contained in Annexure 17 by which the District Judge allowed the revision and set aside the order dated 1921990 passed by the Civil Judge, Faizabad. 2. The petitioner filed a suit for permanent injunction in the court of the Civil Judge, Faizabad, impleading the State of U.P., the SubDivisional Magistrate, Faizabad, the Naib Tahsildar, Tanda, Faizabad and the Town Area Committee Iltifatganj Bazar, Pergana and Tahsil Tanda, District Faizabad, praying that the defendants be restrained from interfering in any way or demolishing the construction of the plaintiff existing over the land in suit. According to the plaint allegations the case of the plaintiff was that the plaintiff is the owner of the plots in dispute. It is not disputed that the plaintiff is the Chairman of the Town Area Committee Iltifatganj Bazar and according to the plaintiff some of the opponents of the plaintiff moved an application before the Collector, Faizabad, stating that the plaintiff is raising construction over a land which has been left for Holika Dahan in the village. The plaintiff further stated that the place of Holika Dahan has already been allotted by the Town Area Committee and the land in dispute has not been left for purposes of Holika Dahan nor any Holika Dahan has been done on this land. While praying for exemption of notice under Section 80 CPC the plaintiff further stated that opposite parties 2 and 3 had threatened the plaintiff to demolish the construction and allot the land in suit for Holika Dahan. It is not disputed that an interim injunction has already been granted in favour of the plaintiff. Opposite parties 6 to 13 of the present writ petition moved an application before the Civil Judge under Order 1 Rule 10(2) CPC for impleadment as defendants 6 to 13 on the ground that from the time of ancestors this Holika Dahan had been done on the plot in dispute land the plaintiff has no right or title over the land in dispute. It was further alleged by opposite parties 5 to 8 that the plaintiff was Pradhan of this village and at present Chairman of the Town Area Committee Iltifatganj Bazar, therefore, in order to grab the land in dispute he filed the present suit impleading Government officers only as opposite parties. Opposite parties 6 to 13 further stated that they are necessary and proper parties and, therefore, they may be impleaded as defendants. 3. The learned Civil Judge by order dated 1921990 rejected the application holding that the plaintiff cannot be directed to add opposite parties 6 to 13 as defendants. Aggrieved by the said order opposite parties 6 to 13 filed Revision No. 17 of 1990 which was allowed by the District Judge, Faizabad, on 2631990. The District Judge, Faizabad, allowed the revision holding that opposite parties 6 to 13 are proper and necessary parties for the proper and final adjudication of the dispute. The petitioner has challenged the said order in this writ petition. 4. I have heard the learned counsel for the petitioner as well as learned counsel for opposite parties. The main contention of petitioners' counsel is that the order passed by the Civil Judge, Faizabad, rejecting the application under Order 1, Rule 10 CPC is an interlocutory order and not reviseable and, therefore, the impugned order passed by the District Judge, Faizabad, allowing the revision was without jurisdiction and illegal. Secondly, the learned cousel for the petitioner contended that even accepting the fact that the revision is maintainable then it would not be within the jurisdiction of the District Judge to set aside the order passed by the Civil Judge which did not involve any jurisdictional error. 5. As regards the first submission is concerned I am of the opinion that the order passed by the Civil Judge rejecting the application under Order 1, Rule 10 CPC cannot be said to be an interlocutory order. In any case, by rejecting the application under Order 1, Rule 10 CPC the Civil Judge has finally decided the right of the opposite parties 6 to 13 to the extent of their impleadment in the suit and, therefore, the said order comes within the definition of the case decided and cannot be categorised in the group of interlocutory order. In any case, by rejecting the application under Order 1, Rule 10 CPC the Civil Judge has finally decided the right of the opposite parties 6 to 13 to the extent of their impleadment in the suit and, therefore, the said order comes within the definition of the case decided and cannot be categorised in the group of interlocutory order. It is not disputed that the order passed by the Civil Judge is not an appealable order and, therefore in my opinion, the revision filed by opposite parties 6 to 13 before the District Judge was maintainable and the contention of petitioner's counsel that no revision lies against the said order is not acceptable. 6. No doubt, it is the discretion of the plaintiff to implead or not to implead any person as defendant in his suit and the Court should not add persons in the suit of the plaintiff against the wishes of the plaintiff, but it is also the bounden duty of the Court to see that proper and necessary parties be present before the court for proper and final adjudication of the suit. It may further be pointed out that it is also necessary to implead persons as parties in the suit in order to avoid multiplicity of suits. It is also settled law that this discretion can be exercised by the court suo motu or on the application of necessary or proper party. The main object of Order 1, Rule 10 CPC is that if presence of any other person is required in the suit for the final adjudication of the dispute then the court either suo motu or on the application of such a person may direct impleadment of the said person in the suit for final and effective adjudication of the case. From the very beginning the law is settled on this question and in the case Hughes v. The Pump House Hotel Company Ltd. (1902) 2 KB 485) the following observations were made: Where an action has, through a bona fide mistake, been commenced in the name of the wrong person as plaintiff, the fact that the original plaintiff has no cause of action does not take away the jurisdiction of the Court to order the substitution of another person as plaintiff. The Supreme Court in the case of Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (AIR 1963 Supreme Court 786) took the view as under: To summarise in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. Again in the case of Munshi Ram v. Narsi Ram (AIR 1983 Supreme Court 271) the Supreme Court held that no doubt suit against M has become time barred but at the time of filing of the suit, suit against M was also within time, therefore, M being a necessary party has to be impleaded. The relevant observations run as under: There is no dispute that if the suit had been filed against M also on January 29, 1978 it would have been in time and would not have suffered from the defect of nonjoinder of a necessary party. The bar of limitation is thus got over by the appellant. Further, M being a necessary psrty has to be impleaded under Order 1, Rule 10 CPC to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The Allahabad High Court in the case of Rampur Tannery and Manufacturing Co. Ltd. v. Umar Uddin (AIR 1954 Allahabad 11) and in the case of Mt. Jaimala Kunwar v. Collector of Saharanpur (AIR 1934 Allahabad 4) held that even when this rule is in terms inapplicable, the court has power to add parties on general principle where such addition is necessary. 7. In view of the principles enumerated in the above mentioned cases in my opinion the Court has ample power to direct impleadment of any party suo motu or on the application of necessary party if presence of the said person is necessary for final and effective adjudication of the dispute. 7. In view of the principles enumerated in the above mentioned cases in my opinion the Court has ample power to direct impleadment of any party suo motu or on the application of necessary party if presence of the said person is necessary for final and effective adjudication of the dispute. A party will be necessary defendant only if there is a right to relief against him in respect of the suit and his presence is necessary for the effectual and complete adjudication of all the questions involved in the suit. 8. Keeping in mind the above mentioned principles I find that the present case is fully covered under Order 1, Rule 10 CPC and the order passed by the District Judge requires no interference. In the instait case the District Judge after considering the case of the parties at great length came to the conclusion that in order to avoid multiplicity of suits and further for proper adjudication of the dispute the presence of opposite parties 6 to 13 in the suit is necessary and therefore he directed impleadment of opposite parties 6 to 13 in the suit and I find no illegality in this finding. From the perusal of the plaint itself it is made clear that there is a dispute about the nature of the land in dispute. The plaintiff claimed this land as Bhumidhari land whereas others claimed that the land in dispute is land for Holika Dahan. It may further be pointed out that due to this dispute the plaintiff was forced to file the present suit but he impleaded only the State and State Officers as defendants. Now by means of this application under Order 1, Rule 10 CPC opposite parties 6 to 13 came forward to seek their impleadment on the ground that they are necessary and proper parties and for the final and proper adjudication of the case they may also be impleaded as defendants. As pointed out above, the District Judge found that the presence of opposite parties 6 to 13 is necessary for the proper and final adjudication of the case and, therefore, he allowed the revision and directed impleadment of opposite parties 6 to 13 in the suit. In view of the above discussion I find no force in this writ petition which is misconceived. 9. In view of the above discussion I find no force in this writ petition which is misconceived. 9. Lastly, the petitioner's counsel stated that he will suffer irreparable injury if the suit lingers on and is not decided expeditiously. I, therefore, direct the Civil Judge (trial court) to decide the case expeditiously, say within one year from the date of receipt of this order. It is expected that the parties will cooperate in the matter. 10. With the above observations the writ petition is dismissed. The stay order stands discharged. Parties will bear their own costs.