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2015 DIGILAW 8 (RAJ)

Jaipal Gupta v. Kheenv Singh

2015-01-05

ARUN BHANSALI

body2015
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner is aggrieved against the order dated 3.11.2007 passed by the trial court, wehreby the application filed by the petitioner under Order I, Rule 10 CPC has been rejected. 3. The respondent- Kheenv Singh filed a suit seeking declaration and injunction against the Municipal Board, Sojat City and the Executive Officer, Municipal Board, Sojat City regarding Plot No.122. 4. The present application was filed by the petitioner interalia claiming that as the petitioner has sought permission from the Municipality and has constructed windows towards disputed land, he has right of easement qua the said windows; made certain other allegation and sought impleaded as party defendant. 5. application was opposed by the respondent-plaintiff on several grounds. It was alleged that the application was malafide. 6. The trial court after hearing the parties rejected the application holding that if the petitioner's easement was affected, he was free to file a fresh suit and as the suit was at the final stage, the petitioner was not entitled to be impleaded as party. 7. It is submitted by learned counsel for the petitioner that a bare look at the plaint reveals that the plaintiff has made specific allegations against the petitioner, further in the reply to the application filed by the petitioner also similar averments have been made, therefore, the petitioner is a necessary party to the suit. 8. Learned counsel for the respondents vehemently opposed the prayer and the submissions made by learned counsel for the petitioner. It was submitted that the petitioner is not a necessary party to the suit wherein the plaintiff has sought regularisation of the plot in his favour and no relief qua the petitioner has been sought. 9. During the course of submissions, learned counsel for the petitioner submitted that looking to the stage of the suit even if the petitioner is permitted to make submissions only after being impleaded as party and the suit is not reverted back to the stage of filing of the written statement and other proceedings, then also petitioner's cause would be served. 10. Learned counsel for the respondents opposed the said prayer as well. 11. I have considered the rival submissions and the alternative prayer made by learned counsel for the petitioner. 12. 10. Learned counsel for the respondents opposed the said prayer as well. 11. I have considered the rival submissions and the alternative prayer made by learned counsel for the petitioner. 12. From the averments made in the suit, it is apparent that the plaintiff had made certain allegations against the petitioner, however, the relief was claimed qua the defendants impleaded in the suit only and no relief was sought against the petitioner. 13. Further so far as the cause of the petitioner regarding threatened affect to the easement qua the windows constructed by him overlooking the plot-in-question is concerned, the stage qua the said easement would arise once the suit filed by the plaintiff is decreed and certain steps are taken by him in this regard and therefore, it cannot be said that the presence of the petitioner was necessary for the decision of the suit. 14. The application filed by the petitioner is silent as to what prompted him to file application after passage of over three years, after the suit had reached at the final stage and in that view of the matter, the trial court was justified in rejecting the application for being impleaded as party. 15. However, keeping in view that certain averments have been made by the petitioner in the plaint and the said averments may not form the basis for the trial court to record a finding contrary to the petitioner's interest, in view of the fact that learned counsel for the petitioner has alternatively submitted that the petitioner may be permitted to make submissions qua the said aspect, to that extent the prayer appears to be justified. 16. Consequently, this writ petition is disposed of modifying the order dated 3.1.2007 passed by the trial court permitting the petitioner to be impleaded as party defendant 'only for the limited purpose of making submissions' in view of the observations made here-in-before. 17. As the suit pertains to the year 2003 and the proceedings remained stayed for over seven years on account of pendency of the present writ petition, it is expected that the trial court shall proceed with the hearing of the suit as expeditiously as possible.Petition Disposed of. *******