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2015 DIGILAW 250 (ALL)

Ram Adhar v. Arjun Kumar

2015-02-09

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. 1. A suit No. 261 of 1989 has been instituted by Sita Ram and upon his death, through his legal heirs, asserting that the suit property belongs to Sita Ram, who is the owner in possession of the suit property. It was asserted that the defendants have no authority to remain in possession over the suit property and, therefore, a prayer has been made to dispossess them. During the pendency of the suit, an amendment application has been filed, whereby it has been asserted that the name of Sri Shivji Maharaj has been mutated as the owner of the property and the plaintiffs are its Pujari/Sarvarakar and therefore, in such capacity also, they are entitled to maintain the suit for eviction. The suit is pending since the year 1989 and now an application has been moved under Order I, Rule 10(1) read with Order VI, Rule 17 read with section 151, C.P.C. with the prayer that Shivji Maharaj, as deity, be permitted to be impleaded as plaintiff No. 2 in the suit through its Sarvarakar i.e., plaintiff No. 1 and the suit be continued at the instance of the deity also. The application has been strongly opposed by the defendants, who have contended that the suit was being contested refuting the plaintiff's claim to be the owner in possession and, therefore, the filing of application for amendment and impleadment is an abuse of the process of law, inasmuch as a contradictory stand has now been sought to be raised with the object of further delaying the disposal of the suit. The Trial Court heard the parties on the application and found that in view of the plaint averments, there was no necessity of impleading Shivji Maharaj through its Sarvarakar as plaintiff No. 2. This order has been challenged in revision, which has also failed. Challenging the aforesaid two orders, the plaintiff-petitioners have filed the present writ petition. 2. Learned Counsel for the petitioners submits that in view of the admitted position, emerging on record, it is undisputed to both plaintiffs and defendants that the property belongs to deity and, therefore, its impleadment is necessary. Challenging the aforesaid two orders, the plaintiff-petitioners have filed the present writ petition. 2. Learned Counsel for the petitioners submits that in view of the admitted position, emerging on record, it is undisputed to both plaintiffs and defendants that the property belongs to deity and, therefore, its impleadment is necessary. Reliance has been placed upon the decisions of this Court in case of Laxman Prasad Kanchan v. Kranti Kumar Kanchan and others 1992 (20) ALR 887, Uma Shanker and another v. P. Rajagopalachari and others 1998 (32) ALR 596 and Kisan Uchatar Madhyamik Vidyalaya Samiti and others v. Third Additional District Judge, Deoria and others 1989 (15) ALR 168 , to contend that the powers of the Court to direct impleadment is wide enough and can be exercised, at any stage of the proceedings. Learned Counsel, therefore, submits that in view of the aforesaid proposition of law settled by this Court, the orders passed by the Courts below cannot be sustained. 3. Having heard the learned Counsel for the plaintiff and upon examination of the materials relied upon, this Court finds that the suit itself was instituted by Sita Ram, claiming himself to be the owner in possession of the suit property, for eviction of the defendant. The plaint allegation explain how the defendants were put in possession and also that they have no right to continue. In para-5(A), it has further been asserted that the plaintiff had died on 2.1.2001, leaving behind him a Will, whereby the estate belonging to late Sita Ram, devolved upon his sons who are plaintiff No. 1/1 to 1/3. In para-5(1)(A), it has been stated that next to the house where defendants are residing, their situates a temple in the name of Shivji Maharaj through its Pujari Jiya Lal, Ram Adhar and Pancham Lal, who have been mutated in the revenue records and, therefore, plaintiffs are entitled to secure dispossession of the defendants, in their capacity as Sarvarakar as well, and that the defendants do not have any right to continue in possession. 4. During the course of argument, learned Counsel for the petitioners has also stated that between the plaintiffs and the defendants, there is a dispute going on as to who is the Sarvarakar, which is subjudice in Original Suit No. 263 of 2004, instituted by the defendants. 4. During the course of argument, learned Counsel for the petitioners has also stated that between the plaintiffs and the defendants, there is a dispute going on as to who is the Sarvarakar, which is subjudice in Original Suit No. 263 of 2004, instituted by the defendants. The present suit has been filed in the year 1989 by Sita Ram with a clear and categorical averment that he is the owner in possession and even upon the death of Sita Ram, by amendment, it is stated that the plaintiffs right to seek eviction of defendant would not be lost on account of recording of name of deity over the suit property. 5. From the pleadings of the suit, this Court finds that the claim of the plaintiff is based upon its alleged ownership of the suit property. Whether the plaintiff is entitled to succeed on the strength of his claim of ownership would be gone into at the stage of trial. The amendment which has been introduced and accepted merely asserts that the right of the plaintiff to claim dispossession is not lost merely because the deity is recorded as owner through its Sarvarakar. However, vide subsequent amendment, the basis of initial claim of Sitaram's ownership is sought to be substituted with the claim being pursued in the name of deity with plaintiff No. 1 as Sarvarakar. The suit has been filed in the year 1989 and is continuing for the last 25 years. In case, the plaintiff is now permitted to substitute the basis of claim/suit itself by impleading the deity through its Sarvarakar as a plaintiff, it would virtually alter the basis of suit itself and would virtually require a fresh trial, which would not be in the interest of justice, keeping in view that the suit has remained pending for the last 25 years. In such circumstances, if the Courts below have refused to allow the applications for impleadment and amendment, this Court finds no perversity or illegality therein so as to interfere with them in exercise of writ jurisdiction. The judgments, which have been relied upon by the learned Counsel for the petitioners, merely reiterates the settled proposition of law that the Court is not powerless to direct impleadment at any stage of the proceedings. The judgments, which have been relied upon by the learned Counsel for the petitioners, merely reiterates the settled proposition of law that the Court is not powerless to direct impleadment at any stage of the proceedings. The judgment, however, merely lay down the proposition of law, which in the facts and circumstances of the present case, is not of any help to the plaintiffs-petitioners. In view of the discussions made above, this Court is not inclined to interfere with the orders impugned and writ petition consequently fails and is hereby dismissed. However, as the suit itself has remained pending for the last 25 years, a direction is issued to the Court concerned to forthwith expedite the proceedings of the suit and to conclude the same, at the earliest possible, in accordance with law, without granting unnecessary adjournment to either of the parties, by fixing short dates. No adjournment would be granted except on payment of cost.