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2010 DIGILAW 975 (HP)

Rattan Chand v. Dharam Singh

2010-07-23

SURJIT SINGH

body2010
JUDGMENT (Surjit Singh, J.) – Petitioners are defendants in a suit instituted in the Court of Civil Judge, Hamirpur. Suit has been filed by respondents for permanent prohibitory injunction, restraining the petitioner/defendants from making any encrcoachment, on Khasra No. 84 and 83, which are alleged to be in the ownership of the State of Himachal Pradesh, but available for use by residents of the village for common purposes, like thoroughfare and other common purposes. Prayer for fixation of the boundary between the suit land and the adjoining land of the defendants has also been made. Defendants filed written statement, in which a preliminary objection that the suit was bad for non-joinder of State of Himachal Pradesh, was also raised. Written statement was filed in the year 2002. 2. In the year 2008, respondents filed an application, under Order 6 Rule 17 and Order 1 Rule 10 CPC, seeking impleadment of the State of Himachal Pradesh, as a party and also to amend the plaint to raise the plea that the State, despite being the owner of the property, had not taken any steps to protect the interest of the villagers, who had the right to use the property for common purpose and seeking a decree for mandatory injunction against the State, directing it to take appropriate steps for removal of encroachment. 3. That application has been allowed. Petitioners are aggrieved by the order dated 05.05.2009, allowing the said application. Copy of the order is Annexure P-8. 4. I have heard the learned counsel for the parties and gone thought the record. 5. It is submitted by the counsel for the petitioner that case for amendment of plaint is not made out, inasmuch as it is not even stated in the application that despite exercise of due diligence, the respondents/plaintiffs were not aware of the plea, sought to be incorporated by way of amendment. In support of his contention, learned counsel for the petitioners has placed reliance upon two judgments of this Court, citations are Sohan Lal vs. Mohan Lal and others, Latest HLJ 2009 (HP) 1410 and Prithvi Raj and another vs. Gopal Singh and others, 2005(2) SLJ 958. 6. In support of his contention, learned counsel for the petitioners has placed reliance upon two judgments of this Court, citations are Sohan Lal vs. Mohan Lal and others, Latest HLJ 2009 (HP) 1410 and Prithvi Raj and another vs. Gopal Singh and others, 2005(2) SLJ 958. 6. In the aforesaid judgments, it has been held that to succeed in an application for amendment, party making the application, has to plead and show that despite exercise of due diligence, plea sought to be added, could not be taken in the original plaint or written statement, as the case may be. The present case is different form the cases, in which the aforesaid judgments have been rendered, in the sense, that the petitioners/defendants, themselves, have raised the objection that the State of Himachal Pradesh was a necessary party and the suit was bad for its non-joinder. 7. It is a settled proposition of law that where a suit is found to be bad for non-joinder of necessary party, the Court would not dismiss the same, without affording an opportunity to the plaintiff to implead the party held to be necessary. In the present case, as already noticed, petitioner/defendants, themselves, took the plea that the State of Himachal Pradesh was a necessary party and the suit was bad for its non-joinder. Now, when the respondents wanted to remove this objection, there should not have been any objection, even though, the application was belated, because a suit cannot be dismissed straightway, on account of non-joinder of necessary party, but opportunity is required to be afforded to the respondents/plaintiffs to implead such party. 8. However, the application, having been made at a very late stage, it should have been allowed on payment of reasonable amount of money on account of costs. In the present case, the Court has awarded only Rs. 500/- as costs. In these days of high inflation, a sum of Rs. 500/- is nothing and instead of Rs. 500/-, respondents are saddled with costs of Rs. 5,000/-, inclusive of the costs, already awarded by the trial Court. Trial Court is directed to decide the case at the earliest possible and in any case, before 31st March, 2011. Petition is disposed of, accordingly. 9. Pending application(s), if any, stand disposed of, m view of the disposal of the main petition.