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2000 DIGILAW 851 (PNJ)

Jasdeep Singh v. M. S. Sandhu

2000-08-03

SWATANTER KUMAR

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JUDGMENT Swatanter Kumar, J. - Assistant Estate Officer, Union Territory, Chandigarh has filed this application under Order 1 Rule 10 read with Section 151 C.P.C. praying that they be impleaded as a party to the afore-noticed regular second appeal. Upon notice non-applicant-respondents filed reply taking preliminary objections with regard to the very maintainability of the application as well as denying the averments on merits. They also stated that the application was misconceived. 2. At the very outset it must be noticed that the regular second appeal preferred by Jasdeep Singh against the judgment and decree passed by the learned first Appellate Court was dismissed by this Court vide its order dated 23.11.1998. The order of dismissal reads as under :- "I have heard the learned counsel for the parties. While issuing notice to show cause why this appeal be not admitted vide order dated 12.11.1998 a reference was made to Rule 14 of the Chandigarh (Sale of Sites and Building) Rules, 1960. In accordance with this rule the fragmentation of the plot was not permissible. The learned counsel appearing for respondents has relied upon a judgment of this Court in the case of Shri Chander Prakash Malhotra v. R.B.S. Chahal, 1994(1) RCR(Rent) 312 wherein the learned Judge of this Court while relying upon a judgment of the Supreme Court in Civil Appeals No. 4974 and 2305 of 1992, has observed that if there was no partition by metes and bounds and there was no fragmentation of the plot, the provisions of this rule are not attracted. I have heard the learned counsel for the parties. There is a concurrent view taken by the learned Courts below that the partition of the building is being done floor-wise and not of the plot by metes and bounds. The obvious result is that there is no fragmentation of the plot and there is only the distribution of the building already constructed on the said plot. For the reasons aforesaid, I find no merit in this regular second appeal and the same is dismissed." It may further be noticed that the Honble Apex Court in the cases of V.P. Malhotra vide order dated 24.11.1992 had set aside the judgment of the High Court in so far as it declared Rule 14 invalid. However, the appeal otherwise, was allowed by the Apex Court. However, the appeal otherwise, was allowed by the Apex Court. Relying upon the above order of the Supreme Court another Bench of this Court on 1.12.1993 had permitted partition in terms of bye-laws and as per the judgment and decree of the Courts below. After the dismissal of the regular second appeal, the parties to the suit approached the Estate Officer, Union Territory, Chandigarh for issuing an appropriate letter and recording the ownership in terms of the decree. Obviously, the applicants did not actually want to divide the plot. This request was kept pending for one reason or the other. The parties to the suit then filed a contempt petition in the High Court, which is also stated to be pending. 3. Thereafter, on 10.3.2000 nearly 1.5 years after the passing of the order, the application under Order 1 Rule 10 as well as another application under Section 151 of the Code had been filed for modification of the order which has already attained finality between the parties to the suit/appeal. 4. This Court is primarily concerned with the merits of the very maintainability of the application filed by the applicant under Order 1 Rule 10 of the Code. It is an admitted case between the parties that the Chandigarh Administration was not a party to the suit or at any subsequent stage before any Court till disposal of the regular second appeal by this Court till 23.11.1998. The substance of the prayer is that the Assistant Estate Officer should be impleaded as a party and the order should be recalled. It is contended that the interpretation of Rule 14 in relation to partition should be interpreted by this Court. 5. As already noticed, this application has been vehemently opposed by the parties to the appeal. The regular second appeal was finally decided by this Court on 23.11.1998. Upon decision of the appeal, this Court has become functus officio in the matter. It is very doubtful whether the applicant is a necessary party to the appeal. The suit for partition between the parties to the lis was decreed by the Courts below and has been affirmed by this Court on the basis of the judgments afore-referred. Upon decision of the appeal, this Court has become functus officio in the matter. It is very doubtful whether the applicant is a necessary party to the appeal. The suit for partition between the parties to the lis was decreed by the Courts below and has been affirmed by this Court on the basis of the judgments afore-referred. The learned counsel for the applicant has placed reliance upon the case of Neelagangabai and another v. State of Karnataka and others, AIR 1990 Supreme Court 1321 to submit that they should be impleaded as a party. On the other hand, learned counsel for the non-applicants has relied upon the cases of Mir Sardar Ali Khan and others v. Special Deputy Collector Land Acquisition (Industries), Hyderabad and others, AIR 1973 Andhra Pradesh 298 and Chiranjilal and another v. Bhagwan Das and others, AIR 1991 Delhi 325 to contend that they cannot be impleaded as party by nor their consent is required in law for the purpose of passing of a decree of partition. 6. It is true in Mir Sardar Ali Khans case (supra) a Division Bench of Andhra Pradesh had taken a view that application can be moved at any stage of the proceedings under Order 1 Rule 10(2) of the Code. Once the dispute is over and Court has decided the matter, an application under Order 1 Rule 10 CPC cannot be maintainable. A party is not left remediless and if the Chandigarh Administration felt that it was aggrieved from the judgment and decree of the Courts below, which has been in their notice for a considerable period, they could have easily preferred an appeal with leave and in accordance with law. But impleadment of a person in a decided matter will neither be proper nor is permissible in accordance with the settled principles of law. For the reasons for afore-stated, I am of the considered view that the application under Order 1 Rule 10 of the Code is not maintainable before this Court and is, accordingly, dismissed, without any orders as to costs. Application dismissed.