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2015 DIGILAW 763 (MP)

Dashrath Singh v. Rajkumar Gangele

2015-07-23

B.D.RATHI, U.C.MAHESHWARI

body2015
ORDER 1. Heard. 2. On behalf of the petitioner, this writ petition is filed under Article 226 of the Constitution of India but in the available circumstances, the same appears to be under Article 227 of the Constitution of India for quashment of the impugned order dated 25.6.2013 (in the body line of the petition the same is wrongly stated as of 23.6.2015), whereby the application of the present petitioner filed under Order 1 rule 10 CPC to permit him to join the impugned pending first appeal as respondent has been dismissed by the appellate authority the M.P. State Co-operative Tribunal, Bhopal and thereafter the appeal was directed to be listed for by-parte hearing on some other date. 3. Petitioner's counsel after taking us through the petition as well as the impugned order along with other papers placed on record, argued that the basic proceedings of the subject matter of the impugned appeal was started in compliance of the direction of the order dated 29.1.2014 passed in Writ Petition No.8591/2013 (PIL) filed at the instance of the present petitioner and“ therefore, on every such stage of such enquiry and proceedings against the respondent No.1 including the impugned appeal, the petitioner being necessary party, the appellate Tribunal was bound to allow his application and permit him to join such appeal as respondent but the same has been dismissed under the wrong premises. 4. At this stage, in view of the law laid down by the Full Bench of this Court in the matter of Panna and another v. Jeewanlal and another, reported in 1976 JLJ 84 (Full Bench), according to which such party could be deemed to be necessary party in whose absence the effective order, judgment and decree could not be passed, on asking the petitioner's counsel that in the available factual matrix of this case at hand, the effective order/judgment could be passed by the appellate authority only in presence of the existing parties and the presence of the present petitioner is not required for any purpose because the role of the petitioner was already over after passing the aforesaid order dated 29.1.2014 in his Writ Petition No.8591/2013 directing the authorities of respondent No.2 to take appropriate action/steps against the respondent No.1. 5. 5. Apart this, in view of the law laid down by the apex Court in the matter of Hindustan Aeronautics Ltd. and another v. Ajit Prasad, reported in AIR 1973 SC 76 ; in the matter of Mohd. Yunus v. Mohd. Mustaqim and others, reported in AIR 1984 SC 38 and in the matter of Amar Bahadur Singh v. State of U.P., reported in AIR 2011 SC 1353 holding that if the impugned order is passed by the subordinate Court under its vested discretionary jurisdiction then the same even if it is erroneous, cannot be interfered with by the High Court under the revisional jurisdiction enumerated under section 115 of CPC or under the superintending jurisdiction vested under Article 227 of the Constitution of India, on which after perusing such case laws, instead to argue further petitioner's counsel seeks permission to withdraw this petition at this stage as not pressed with liberty subject to final order/ judgment of the appellate Court/forum arising the occasion, to approach the appropriate forum with appropriate proceeding for appropriate relief permissible under the law. 6. In view of the principle laid down by the apex Court as well as by this Court in above mentioned cases, this petition deserves to be dismissed, but, however, considering the prayer of the petitioner's counsel, instead to dismiss the same on merits, the petition is hereby dismissed as withdrawn and not pressed. However, considering the oral prayer of the petitioner's counsel, the petitioner is extended the liberty, subject to final order/judgment of the appellate Court on arising the occasion to approach the appropriate forum with appropriate proceeding for appropriate relief, permissible under the law. 7. Petition is dismissed as withdrawn and not pressed with aforesaid liberty and observations. ..........