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Rajasthan High Court · body

2014 DIGILAW 915 (RAJ)

Vijay Kumar Kastiya v. Sant Kumar Khandaka

2014-04-11

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present petition has been filed by the petitioner-applicant under Articles 226 & 227 of the Constitution of India, challenging the order dated 28.01.2014 passed by the Additional Civil Judge (J.D.) No.4, Jaipur Metropolitan City, Jaipur (hereinafter referred to as "the trial court") in Civil Suit No.44/13, whereby the trial court has dismissed the application of the petitioner-applicant for impleading him as the party-defendant in the suit under Order I Rule 10 of CPC. 2. The respondent No.1-plaintiff has filed the suit against the respondent Nos.2 to 5-defendants, challenging the notices more particularly the notice dated 06.02.2013 given by the respondent Nos.2 & 3, and seeking permanent injunction against the respondents-defendants, from causing any obstruction to the plaintiff in carrying out the finishing work or electric fitting work in the shop belonging to the respondent No.1-plaintiff. In the said suit, it was alleged by the respondent No.1-plaintiff that because of the complaint made by the tenant of the shop situated above the shop of the plaintiff, the municipal corporation had given the said notices to the plaintiff. The petitioner-applicant who is the tenant in the shop situated above the shop of the respondent-plaintiff had therefore submitted an application for impleading him as the party-defendant in the suit under Order I Rule 10 of CPC, which has been dismissed by the trial court vide the impugned order. 3. It is submitted by the learned counsel Mr. Anil Mehta for the petitioner-applicant that the entire building where the shops of the petitioner and of the respondent-plaintiff are situated, has become very dangerous for being used as the respondent No.1 had unauthorisedly removed the mid wall of the two shops belonging to him, as a result thereof the building has become weak and the petitioner himself has been asked to vacate his shop. According to him, even municipal corporation has directed the respondents to repair the shop of the petitioner vide the notice dated 06.02.2013, which is under challenge in the suit. According to him, the petitioner having semblance of right in the shop in question, he is a necessary party. However, the learned counsel Mr. Saransh Saini for the respondent No.1-plaintiff has submitted that the respondent-plaintiff has not claimed any relief against the petitioner, and therefore, he cannot be said to be a proper or necessary party. According to him, the petitioner having semblance of right in the shop in question, he is a necessary party. However, the learned counsel Mr. Saransh Saini for the respondent No.1-plaintiff has submitted that the respondent-plaintiff has not claimed any relief against the petitioner, and therefore, he cannot be said to be a proper or necessary party. According to him, the petitioner is only the tenant of the shop of the above shop of the respondent-plaintiff, and the landlord of the said shop having not come forward the trial court has rightly dismissed the application of the petitioner. Learned counsel Mr. Saini has relied upon the various decisions of this Court in support of his submissions. 4. The learned counsel Ms. Naina Saraf for the respondent-municipal corporation has submitted that the notices were given to the respondent-plaintiff as the respondent had challenged the nature of the two shops belonging to him by removing the mid wall, which had caused damage to the entire building. 5. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial court, as well as to the documents on record, more particularly the plaint as well as the notice dated 06.02.2013 given by the municipal corporation to the respondent-plaintiff, it clearly transpires that the respondent-plaintiff having removed the mid wall existing between the two shops belonging to him, had caused damage to the entire building including the shop of the petitioner. The petitioner, therefore, having made complaint before the respondent-municipal corporation, the notice dated 06.02.2013 was issued to the respondent-plaintiff, calling upon him to repair the shop of the petitioner and also to remove the illegal construction carried out by him. In the plaint also the respondent-plaintiff has referred to the complaint made by the petitioner and has referred to the said notice dated 06.02.2013. Though, it is true that the respondent-plaintiff has not prayed for any relief against the petitioner, it is required to be noted that by seeking temporary or permanent injunction against the implementation of the notice in question, the right of the petitioner would be affected, and therefore, the petitioner would be not only proper but necessary party in the suit. The decisions relied upon by the learned counsel for the respondent No.1-plaintiff are not relevant to the facts of the present case and also are not helpful. The decisions relied upon by the learned counsel for the respondent No.1-plaintiff are not relevant to the facts of the present case and also are not helpful. Suffice it to say that any order passed by the trial court in favour of the respondent-plaintiff against the respondent-corporation might affect the right of the petitioner also, and therefore, the petitioner is required to be impleaded as the party-defendant in the suit. Accordingly, the Court is of the opinion that the trial court has committed an error in dismissing the application of the petitioner for impleading him as the party-defendant in the suit. 6. In that view of the matter, the impugned order deserves to be set-aside and is accordingly set-aside. The application of the petitioner under Order I Rule 10 for impleading him as the party-defendant in the suit, is allowed. The writ petition stands allowed accordingly.Petition Dismissed. *******