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2015 DIGILAW 2018 (RAJ)

Narendra Mohan v. State of Rajasthan

2015-12-04

P.K.LOHRA

body2015
JUDGMENT 1. - Petitioners-plaintiffs have preferred this writ petition under Article 226 and 227 of the Constitution of India to challenge impugned order dated 11.09.2015 (Annex.7) passed by Civil Judge, Pilibanga (for short, 'learned Court below'), whereby learned Court below has allowed application of the respondents-applicants under Order 1, Rule 10 CPC for being impleaded as party defendants. 2. The bare necessary facts for the purpose of this petition are that petitioners-plaintiffs filed a suit by invoking Section 91 CPC, complaining about public nuisance, other wrongful acts affecting the public, and sought a relief of perpetual injunction. Precisely, it was pleaded in the plaint that the ring road of Chak No. 17 PBN of village having the width of 30 feet, is sought to be encroached by some miscreants and as a consequence of it the same has been reduced 8 to 10 feet only. Their precise case is that due to encroachment on the ring road the pedestrian and the other villagers are facing hindrance in their ingress and egress on the road. That apart, it is also urged that a water course is sought to be constructed on the said land which is likely to jeopardise the public interest and as such, it is necessary to restrain the authorities from raising construction of water course. The respondents-applicants laid application (Annex.3) for being impleaded as party defendants by urging that presently they are getting irrigation facility from temporary (Kachha) water course, which is in existence on the so-called ring road at the site and the Gram Panchayat has decided to fulfil the need of the agriculturists by constructing a pacca water course at the site. It is also averred in the application that the temporary injunction granted in the suit has stalled ongoing construction of permanent water course at the site which is affecting the rights of the applicants to get irrigation facilities. With these averments, a prayer is made for impleading respondents-applicants as defendants in the suit as well as application for temporary injunction. The prayer made in the application is opposed by the petitioners by submitting reply. 3. Learned Court below, after hearing the rival submissions, by the order impugned, allowed the application of the respondents-applicants for being impleaded as party defendants to the suit. 4. Mr. The prayer made in the application is opposed by the petitioners by submitting reply. 3. Learned Court below, after hearing the rival submissions, by the order impugned, allowed the application of the respondents-applicants for being impleaded as party defendants to the suit. 4. Mr. Sandhu, learned counsel for the petitioners submits that, looking to the nature of the suit and the reliefs prayed for therein, the applicants are neither necessary nor proper parties to the litigation and therefore, impugned order cannot be sustained. Mr. Sandhu further submits that the whole endeavour of the petitioners-plaintiffs is to espouse a public cause and restrain the encroachers from doing any over tact to obstruct the ring road which is used by the villagers for their ingress and egress. It is also urged by the learned counsel that learned Court below has not recorded any finding worth the name as to how and in what manner the respondents-applicants are necessary or proper parties to the litigation. 5. Per contra, Mr. Bhaleria has submitted that the respondents have averred in the application that their rights are likely to be jeopardised on account of passing of injunctory decree in the suit as well as in the application for temporary injunction, and therefore, they are necessary parties to the litigation or at least proper parties to the litigation. Mr. Bhaleria further submits that since time immemorial the applicants-respondents are availing irrigation facilities from the Kachha water course which is in existence at the site, and the outcome of the suit may result in curtailment of their irrigation facilities, therefore, they are necessary party to the litigation. Learned counsel has also urged that as the interim injunction has been granted in the matter and the ongoing construction of pacca water course has been stalled, thus, there is every likelihood that respondents' rights are likely to be prejudiced on final adjudication of the lis involved in the suit. Mr. Bhaleria, in support of his contention, has placed reliance on a decision of Supreme Court in Vidur Impex and Traders Pvt. Ltd. & Ors. v. Tosh Apartments Pvt. Ltd. & Ors. [2012 (2) WLC (SC) Civil 505 . In this case while considering the rigor of Order 1, Rule 10 CPC the Supreme Court has postulated some broad principles for impleadment of an incumbent as party to the litigation. The Court held:- "36. v. Tosh Apartments Pvt. Ltd. & Ors. [2012 (2) WLC (SC) Civil 505 . In this case while considering the rigor of Order 1, Rule 10 CPC the Supreme Court has postulated some broad principles for impleadment of an incumbent as party to the litigation. The Court held:- "36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment." 6. I have heard learned counsel for the parties and perused the impugned order and other materials available on record. 7. I have heard learned counsel for the parties and perused the impugned order and other materials available on record. 7. Well it is true that in the application, the respondents-applicants have not pleaded the relevant facts so as to indicate that how their presence is necessary for complete and effectual adjudication of the lis involved in the matter but then there is a mention about the fact that the relief prayed for in the suit has some impact on their rights to avail irrigation facilities. The suit, as such, filed by the petitioners is in the nature of espousing the public cause and the concern of the petitioners is to remove encroachment on the ring road which prima facie appears to be a pious object. A fact that at the site pacca water course is sought to be constructed is also admitted by the petitioners-plaintiffs in their plaint and the reliefs prayed for also suggest in clear and unequivocal terms that the same may not be constructed at the site. The Court has taken into account the fact that the incumbent, who has approached the Court for being impleaded as party, is required to show its credential as to whether it is necessary party or a proper party to the litigation. A necessary party is a party in whose absence no effective decree can be passed and no adjudication is possible. Contrary to it, the proper party is one without whose presence the lis involved in the matter cannot be completely and effectually adjudicated. The same principle is laid down by the Supreme court in the case of Vidur Impex and Traders Pvt. Ltd. & Ors. (supra). The learned Court below having examined the matter, in its discretion has permitted the respondents-applicants to be impleaded as party defendants. In my opinion, said order is not liable to be tinkered with in exercise of supervisory jurisdiction of this Court. 8. True it is that there are serious doubts about the status that the respondents-applicants are necessary party to the litigation but then in the backdrop of facts and circumstances of the case, they are proper parties and, therefore, their presence was felt necessary by the learned Court below for complete and effectual adjudication of the lis involved in the matter. That being the position, I feel persuaded not to interfere with the impugned order. 9. That being the position, I feel persuaded not to interfere with the impugned order. 9. Consequently, the petition fails and the same is hereby dismissed summarily.Writ Petition Dismissed. *******