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2011 DIGILAW 846 (MP)

Shashi v. Indore Municipal Corporation

2011-07-29

T.V.K.MODY

body2011
JUDGMENT ( 1. ) PETITIONER by Mr. Vishal Baheti, advocate. Respondents No. 1 and 2 by Mr. Arpit Oswal, advocate Heard on admission. Being aggrieved by order dated 1-2-2011 passed by 8th Civil Judge, Class- Indore in Civil Appeal No. 19-A/2010, whereby the application filed by respondents No. 3 and 4 under Order 1, Rule 10, Civil Procedure Code was allowed and the petitioner was directed to implead respondent No. 3, present petition has been filed. ( 2. ) SHORT facts of the case are that the petitioner filed a suit for declaration and permanent injunction against respondents No. 1 and 2 alleging that show cause notice issued to respondents No. 1 and 2 for removal of construction, is illegal, incorrect and deserves to be quashed. It was prayed that injunction be granted in favour of the petitioner. During pendency of the suit an application was filed by the respondent under Order 1, Rule 10, Civil Procedure Code alleging that the petitioner be directed to implead respondents No. 3 and 4 as party. The application was opposed by the petitioner. After hearing the parties, learned Court below allowed the application against which present petition has been filed. ( 3. ) LEARNED counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the petitioner cannot be compelled to contest the suit against the respondent No. 3 and 4. It is submitted that the petitioner does not claim any relief against respondents No. 3 and 4 therefore, petitioner cannot be compelled to implead them as party. ( 4. ) LEARNED counsel placed reliance on a decision in the matter of Panna and another vs. Jeewanlal, 1976 MPLJ 170 = 1976 JLJ 84 wherein Full Bench of this Court has laid down the principles wherein the application under Order 1, Rule 10, Civil Procedure Code can be allowed which lays the tests for determining whether a party is necessary which reads as under :- i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question. ii) It should not be possible to pass an effective decree in the absence of such a party. ii) It should not be possible to pass an effective decree in the absence of such a party. It was, further held by this Court that the plaintiff is the dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. The plaintiff cannot be required to change the nature of his suit on the ground that the addition of a party is necessary to avoid multiplicity of suits. ( 5. ) IT is submitted that in view of the aforesaid position of law the impugned order passed by the learned Court below is incorrect, illegal and deserves to be set aside. IT is submitted that the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside. ( 6. ) LEARNED counsel for the respondents No. 1 and 2 submits that no illegality has been committed by the learned Court below in passing the impugned order. It is submitted that the petition filed by the petitioner be dismissed. ( 7. ) FROM perusal of record it appears that a complaint was made by the respondents No. 3 and 4. Even if it is true, then too the petitioner cannot be compelled to implead respondents No. 3 and 4 to contest the suit against them. ( 8. ) IN the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned order passed by the learned Court below stands set aside. ( 9. ) WITH the aforesaid direction, the petition stands disposed of. Petition allowed.