Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 981 (RAJ)

Rajendra Prasad Garg v. Ashok Kumar Pansari

2011-05-10

MAHESH BHAGWATI

body2011
Hon'ble BHAGWATI, J.—By way of the instant writ petition, the petitioner has impugned the order dated 21.10.2009 whereby the learned trial Court dismissed the application under Order 1 Rule 10 read with Section 151 of CPC. 2. Having considered the submissions made by the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that two plots Nos.26 and 37 situated in Rajendra Nagar, Jaipur are in dispute. The petitioner-plaintiff has come before the Court with the averment that these plots are in their power and possession whereas the respondent-defendant, in contra, has claimed both these plots of his own. The respondent-defendant also submitted before the learned trial Court that he raised the construction on these two plots which are in his possession. It has emerged on record that both these plots have been allotted by the registered housing society which is required to be regularized by JDA under the provisions of law. It has also emerged that both these plots have yet not been regularized by JDA or any other authority. 3. Now in view of the aforesaid facts and circumstances of the case, the crucial question springing for consideration in the instant writ petition is as to whether the JDA is a necessary or a proper party in this case? 4. The learned counsel for the petitioner plaintiff canvassed that JDA was a necessary party and thus JDA be impleaded as a party defendant, whereas the defendant-respondent, in contra, opposed the application on the ground that the proceedings with regard to both these plots have been stayed/dropped by JDA which suggests that the case of regularization of these plots was pending with the JDA. Under these circumstances, it cannot be said that JDA in this case is not a necessary party. Order 1 Rule 10 (2) of CPC envisages that when the Court is of the opinion that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, shall be added as a party. 5. 5. Adverting to the facts of the instant case, it is found that the proceedings with regard to the regularization of both these plots Nos.26 and 37 situated in Rajendra Nagar, Khatipura, Sirsi Road, Jaipur were pending with the JDA and these proceedings are said to have been dropped by JDA. The petitioner has apprehended that the respondent might influence the JDA authorities and obtain patta of both these plots. It is not disputed that the proceedings with regard to regularization of these plots have been pending with JDA. 6. The object of Order 1 Rule 10 of CPC is to bring on record all the persons, who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the same time without protraction of litigation, inconvenience to parties or multiplicity of proceedings. Albeit, the petitioner plaintiff has not claimed any relief against the Jaipur Development Authority, but the apprehension of the plaintiff is that the respondent defendant could obtain pattas of the plots from JDA under pressure. Although the respondent has not objected to this fact that JDA cannot be made a party in a suit pending before the Civil Court, but the fact is that Section 99 of Jaipur Development Authority Act, 1982 bars the jurisdiction of Civil Court. Now in the light of Section 99 of JDA Act, again a legal question arises as to whether the JDA in the instant suit can be made a party? I am of the view that despite there being a bar of jurisdiction of Civil Court under Section 99 of JDA Act, JDA can be impleaded if JDA is found to be a proper party in the suit. The jurisdiction of the Civil Court has been barred under Section 99 to take cognizance of any matter, which is required to be or may be decided by the authority, Executive Committee, Jaipur Development Commissioner, functional board, anybody thereof, the Tribunal or the State Government under this Act, but the relief sought for by the plaintiff with regard to declaration and perpetual injunction cannot be granted by the JDA Tribunal or Jaipur Development Commissioner or Functional Board or by anybody thereof. The JDA may not be made a necessary party in the instant case, but it seems a proper party for the just decision of the suit. The JDA may not be made a necessary party in the instant case, but it seems a proper party for the just decision of the suit. There is a distinction between necessary party and proper party. A necessary party is one without whose presence, no effective decree or order can be passed. A proper party is one in whose presence a decree or order can be made, but whose presence is necessary for complete, final and effective adjudication of all issues involved in the suit. In other words, a necessary party is a party, who ought to have been joined as a party; and a proper party is a party, who should be joined as a party for convenience or expediency. 7. In the case of United Provinces Versus Atiqua Begum reported in AIR 1941 FC 16, it was held that a person might also be added as a party to the suit, even though he was not a necessary party and no relief was claimed against him, if his presence was necessary for complete and final decision of the questions involved in the suit. The petitioner plaintiff filed an application under Order 1 Rule 10 CPC before the learned trial court imploring that the JDA was a proper party and thus, be permitted to implead him as a party-defendant, but the prayer of the plaintiff was dismissed. 8. It is a settled proposition of law that the plaintiff is dominus litis and normally it is for him to select his adversary from whom he seeks relief and it was not for a Court to ask him to join any other person as a party to the suit. It is not province of a Court of law to interfere with that right. If a plaintiff does not join the necessary or proper party, consequences will ensue and he will suffer. It is not a matter for the Court to worry about. Hence, in the instant case, the JDA is a proper party and the learned trial court is found to have erred in dismissing the application filed by the plaintiff-petitioner under Order 1 Rule 10 of CPC as the relief sought for by the petitioner-plaintiff in a suit pending before the trial court is such, which cannot be granted by the JDA Tribunal or by JDA Commissioner. The ownership of these disputed plots cannot be adjudged by the JDA Tribunal nor a decree of declaration can be passed by it. It is expedient, in the interest of justice, to allow the petitioner plaintiff to implead JDA as a party for convenience, hence the impugned order dated 21st October, 2009 is not found to be proper and just and the same deserves to be set-aside. 9. For the reasons stated above, the writ petition is allowed and the impugned order dated 21st October, 2009 passed by Additional Civil Judge (Jr. Division), Jaipur City, Jaipur (West) stands set-aside.