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2015 DIGILAW 861 (RAJ)

Rajendra Jain v. U. I. T. , Udaipur

2015-04-16

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. These writ petitions have been filed by the petitioner aggrieved against orders dated 16.12.2014 passed by the trial court, whereby, the applications filed by respondent Nos. 3 to 6 under Order I, Rule 10 CPC in the suit and application for temporary injunction have been allowed. 2. The petitioner filed a suit for permanent and mandatory injunction against Urban Improvement Trust, Udaipur ('UIT'), inter alia, with the averments that plot No. 9 situated at Gayitri Nagar, Hiranmagri, Sector 5, Udaipur was owned by the petitioner, wherein, his house having rooms, kitchen, passage, toilet etc. 2. The petitioner filed a suit for permanent and mandatory injunction against Urban Improvement Trust, Udaipur ('UIT'), inter alia, with the averments that plot No. 9 situated at Gayitri Nagar, Hiranmagri, Sector 5, Udaipur was owned by the petitioner, wherein, his house having rooms, kitchen, passage, toilet etc. are standing; the land in question forms part of Araji No.1484/2429, wherein, the UIT has undertaken proceedings under Section 90B of the Rajasthan Land Revenue Act and Patta has been issued to several plot holders around petitioner's plot; petitioner has also applied for issuance of Patta and has deposited the self assessment regularization amount with the UIT; it was alleged that while approving the plan pertaining to Araji No.1484 the UIT did not provide for flow of storm water resulting in huge water logging and as the residents of the colony were being inconvenienced the Collector requested that administration was arranging for construction of permanent drain and till such time, the petitioner was requested to temporarily, in public interest, permit the water to be drained through his house, based on which, the petitioner permitted to provide for a 5-6 fit wide drain, for which, certain construction was required to be removed, the Collector had assured about issuing free patta for providing the drain; it was alleged that the drain exist in the plot by way of temporary measure and the residents of the colony situated on the western side of the house having no right or easement and petitioner is entitled to withdraw his consent; the UIT has as per approved plan provided for a drain and the inconvenience to the residents of the colony has been taken care of; the temporary drain is no longer required; it was alleged that despite repeated requests, the temporary drain has not been closed so far; on the other hand, under influence of the neighbourers of the plaintiff Arjun Singh Rathore and Mool Shanker Ametha the officers and employees of the UIT have demolished the toilet and bath room constructed on the plot and have stated that the drain would permanently remain at the said place and a road would be constructed over the drain and would be connected to the main road; it was also alleged that the entire proceedings were done on account of the influence of Arjun Singh Rathore whose brother is working with the police department and several of his relatives are working on high administrative positions; several other allegations were made and ultimately it was prayed that permanent injunction be issued against the UIT from demolishing any part of the house and from interfering in the house at the plot in question; a further prayer was made that permanent drain be not constructed and mandatory injunction was sought for reconstructing the walls etc. and permit the petitioner for doing the needful. 3. During the pendency of the suit application under Order I, Rule 10 CPC was filed by Mool Shanker Ametha, Arjun Singh Rathore and two others, inter alia, contending that a drain for the storm water was existing, on which, the plaintiff raised construction resulting in water logging in the colony and, therefore, an application was filed with the UIT indicating the various illegalities having been committed regarding the said plot and the inconvenience suffered by the residents of the colony along with the threat to their life. 4. Based on the application filed by them, steps were taken by the UIT for removal of the construction; it was submitted that the petitioners are affected by the relief sought by the petitioner and that allegations have been made against them in the application; any order passed by the Court would affect their rights and the applicants were suffering mental, physical and financial loss and, therefore, they be impleaded as party to the suit. 5. The application was opposed by the petitioner, inter alia, indicating that he has not sought any relief against the applicants and, therefore, they were not necessary party to the suit. 6. Similar averments were made by the petitioner in application filed under Order 39, Rule 1 and 2 CPC, wherein, also an application under Order I, Rule 10 CPC was filed by the applicants. 7. The trial court after hearing the parties came to the conclusion that from the factual position, which has come on record, the applicants appear to be necessary party to the suit; on merits as to what would happen in the suit cannot be assumed, however, as the applicants have indicated that the water logging takes place around their house they were proper parties and, consequently, allowed the application filed in the suit as well as application seeking temporary injunction. 8. 8. It is submitted by learned counsel for the petitioner that the trial court committed grave error in permitting impleadment of the applicants as party to the suit and application seeking temporary injunction; it was submitted that no relief whatsoever was claimed by the petitioner qua the said defendants and the matter was squarely between the petitioner and the UIT; the impleadment of the applicants would result in enhancing the scope of the suit, which aspects have not been adverted to by the trial court and, therefore, the order impugned deserves to be set aside. 9. Reliance was placed on the judgment of this Court in the case of Moti Lal v. Municipal Council, Pail & Ors. : 2009 WLC (Raj.) 645. 10. Learned counsel for the respondent-caveator opposed the prayer made by learned counsel for the petitioner; it was submitted that the applicants were vitally affected by the prayer made by the petitioner in the suit, inasmuch as, if the relief prayed for in the suit was granted, the applicants and the members of the colony would be ruined, inasmuch as, the very fact that the administration was required to intervene and construct a drain to clear the water logging in the colony clearly shows the seriousness of the matter and the applicants are well and truly affected by the relief claimed in the plaint and were therefore necessary party to the suit; it was submitted that in any case the respondents are proper party to the suit and, therefore, the order passed by the trial court does not call for any interference. 11. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 12. 11. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 12. A bare perusal of the plaint filed by the petitioner clearly indicates that the petitioner has made averments indicating that the residents of the colony do not have any right or easement for drain of the water from petitioner's plot; further specific allegations indicating names of Arjun Singh Rathore and Mool Shanker Ametha have been made in the plaint regarding the officers of UIT working under the influence of said persons and that as the brother of Arjun Singh Rathore is in police and other relatives are in high administrative positions, the UIT was acting against the interest of the plaintiff, necessarily shows that the said applicants were necessary party to the suit, inasmuch as, petitioner has specifically sought to contend about the right of the residences of the colony regarding the drain existing in the plot in question and has made specific allegations regarding two of the four applicants, who are entitled to reply to the said allegations and, therefore, their presence was necessary. 13. So far as the judgment in the case of Moti Lal (supra) is concerned, in the said case the dispute raised pertained to the jurisdiction of Municipal Board in issuing notice and taking action against the plaintiff and it was found that the parties added by the trial court were not affected by the decision on the said aspect and on that count this Court came to the conclusion that the applicants therein were not necessary parties. 14. However, in the present case as noticed hereinbefore, the petitioner has sought relief in the suit by negating the right of the residents of the colony and have made specific allegations qua the applicants and, therefore, it cannot be said that the applicants were not necessary parties to the suit. 15. Consequently, the orders impugned passed by the trial court do not call for any interference and the writ petitions filed by the petitioner having no substance are, therefore, dismissed. Petition Dismissed.