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Himachal Pradesh High Court · body

2005 DIGILAW 312 (HP)

SANJEEV KUMAR v. H. P. HOUSING BOARD ARID

2005-08-29

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J.—This petition under Article 227 of the Constitution of India has been filed by the petitioners against the order dated 13.8.2004 passed by the Trial Court, dismissing their application under Order 1 Rule 10 C.P.C. for being impleaded as plaintiffs. 2. The facts which are relevant for the decision of the present petition are that plaintiffs Roshan Lai etc. had filed a suit for declaration etc. under Order 1 Rule 8 C.P.C. against the defendants. It was alleged in the plaint that the plaintiffs were filing the said suit in representative capacity under Order 1 Rule 8 C.P.C. on behalf of the other inhabitants of village Bharolian Khurd and their interests were common with the plaintiffs. A separate application under Order 1 Rule 8 C.P.C. was also filed seeking permission to sue in the representative capacity. List of interested persons (115 in number) was also filed alongwith the said application. Vide detailed order dated 21.6.2004, the learned Trial Court allowed the application under Order 1 Rule 8 C.P.C. and granted necessary permission to the plaintiffs to institute the suit in representative capacity. It was also directed that the persons named in the list (115 in number) filed alongwith the application under Order 1 Rule 8 C.P.C. may be served by way of publication in the newspaper Punjab Kesri. 3. Subsequently the persons at Sr. Nos. 19, 20, 43, 45 and 67 in the list attached with the application under Order 1 Rule 8 C.P.C, had filed an application under Order 1 Rule 10 C.P.C. for being impleaded as plaintiffs in the suit on the ground that they have a right to join the array of plaintiffs for effective and proper adjudication of the matter in the controversy. The learned Trial Court vide order dated 13.8.2004 dismissed the said application with the observations that the application was not maintainable nor tenable as the Court had already permitted the plaintiffs to institute the suit in representative capacity under Order 1 Rule 8 C.P.C. and the names of the applicants who had filed the application under Order 1 Rule 10 C.P.C. also figured in the list of persons on whose behalf the said suit had been filed and those applicants were already found to have joined the suit as plaintiffs in representative capacity and no question arises to pass orders for them to be treated as plaintiffs again and that they were free to join the proceedings as and when they liked and the presence of their counsel had already been marked and the application thus stands dismissed. Aggrieved against this order dated 13.8.2004, the petitioners, who were the applicants in the application under Order 1 Rule 10 C.P.C, filed the present petition under Article 227 of the Constitution of India in this Court. 4. Notice was issued. Records were also requisitioned. I have heard the learned counsel for the parties and have gone through the record carefully. 5. After hearing the learned counsel and perusing the record, in my opinion, the order dated 13.8.2004 passed by the Trial Court has to be set aside. Under Order 1 Rule 8 C.P.C it is provided that where there are numerous persons having the same interest, in one suit, one or more of such persons may, with the permission of the Court sue or be sued, or may defend such suit, on behalf of, or for the benefit of ail persons so interested. It is further provided therein that in every such case where permission is given, the Court shall give notice of the institution of the suit to all persons so interested either by personal service or by public advertisement. It is further provided tinder Order 1 Rule 8(3) CPC that any person on whose behalf or for whose benefit, a suit is instituted or defended, may apply to the Court to be made a party to such suit. It is further provided tinder Order 1 Rule 8(3) CPC that any person on whose behalf or for whose benefit, a suit is instituted or defended, may apply to the Court to be made a party to such suit. Inspite of this specific provision given under Order 1 Rule 8 (3) C.P.C, the learned Trial Court passed the order dated 13.8.2004 dismissing the application of the present petitioners for being impleaded as plaintiffs in the suit, even though the law permits such persons to be impleaded as plaintiffs. It appears that the learned Trial Court had passed the order dated 13.8.2004 without going through and understanding the provisions of Order 1 Rule 8 (3) C.P.C 6. Since the names of the petitioners were mentioned in the list filed by the plaintiffs alongwith the application under Order 1 Rule 8 C.P.C. and since all those persons were ordered to be served by way of publication and since the present petitioners had filed the application for being made party to the suit, as plaintiffs, in my opinion, it was a fit case where the learned Trial Court ought to have passed the orders impleading the present petitioners as co-plaintiffs in the suit alongwith the plaintiffs who had originally filed the suit in representative capacity Instead of allowing the said application, the learned Trial Court dismissed the same with the observation that they were free to join the proceedings as and when they liked to do so and that they were already found to have joined the suit since the plaintiffs had filed the suit in representative capacity These observations made by the learned Trial Court, in my opinion, are contrary to law and the provisions of Order 1 Rule 8 (3) C.P.C. 7. For the reasons recorded above, the present petition is allowed, the order dated 13.8,2004 passed by the Trial Court dismissing the application under Order 1 Rule 10 C.P.C, is set aside and the application under Order 1 Rule 10 C.P.C. filed by the present petitioners is accepted and the present petitioners are ordered to be impleaded as co-plaintiffs in the suit. 8. It has also been brought to my notice that another application under Order 1 Rule 10 C.P.C. was filed on behalf of certain other persons for being impleaded as party in the suit and that the said application is still pending. 8. It has also been brought to my notice that another application under Order 1 Rule 10 C.P.C. was filed on behalf of certain other persons for being impleaded as party in the suit and that the said application is still pending. The learned Trial Court shall consider the said application and dispose of the same expeditiously in accordance with law. 9. At this stage, it has also been brought to my notice that since there was a dispute between the parties as to who will be entitled to receive the amount of compensation for the acquired land, the Land Acquisition Collector has already made a reference under Section 30 of the Land Acquisition Act to the District Judge, Una. If that being so, in my opinion, it would be appropriate if the present suit for declaration filed by the plaintiffs and the said reference under Section 30 of the Land Acquisition Act are decided together by consolidating the same. Under these circumstances, it is directed that in case the District Judge, Una has received a reference under Section 30 of the Land Acquisition Act, with regard to the acquired land which is also the subject-matter of the present litigation, the learned District Judge shall transfer the present suit from the Court of Civil Judge, Senior Division, Una to his own Court, or to the Court of Additional District Judge, if any, to whom, the reference petition under Section 30 of the Land Acquisition Act may have been transferred. Thereupon, the learned District Judge/Additional District Judge shall decide the reference under Section 30 of the Land Acquisition Act and the present suit together by consolidating the same. A copy of this order be sent to the District Judge, Una, for information and strict compliance. 10. Parties through their counsel are directed to appear before the learned Trial Court on 27th September, 2005, for further proceedings in accordance with law. CMP No. 469 of 2004 and CMP Nos. 54, 59 and 64 of 2005 : 11. In view of the orders passed in the main petition, the stay order shall stand vacated and all the applications stand disposed of. Petition disposed of.