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Madhya Pradesh High Court · body

2015 DIGILAW 872 (MP)

Waris Ali v. Sub-Divisional Office

2015-08-20

B.D.RATHI, U.C.MAHESHWARI

body2015
ORDER 1. Heard on the question of admission. 2. On behalf of the petitioner [Defendant No.3], this petition is preferred under Article 227 of the Constitution of India being aggrieved by the interim order dated 6.7.2015 passed by the Madhya Pradesh State Waqf Tribunal, Bhopal in Case No.99/2011 whereby the application of the petitioner filed under Order 1 rule 10 CPC (Annexure P-4) for appropriate direction to implead the State of Madhya Pradesh and Aukaf Officer, Aukaf Department, Moti Mahal, Gwalior as party in the impugned suit, Annexure P-2, has been dismissed. 3. Having heard the petitioner’s counsel on the question of admission, we have carefully gone through the petition as well as papers placed on the record along with the impugned order. 4. On the following grounds, we are not inclined to entertain this petition : (A) As per the settled proposition of law laid down by the apex Court in the matter of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad AIR 1973 SC 76 , in the matter of Mohd. Yunus v. Mohd. Mustaqin and others AIR 1984 SC 38 and in the matter of Kokkanda B. Poondacha and others AIR 2011 SC 1353, holding that if any order is passed by the subordinate Court under its vested discretionary jurisdiction then the same could not be interfered with by the High Court either under revisional jurisdiction under section 115 of CPC or under the supervisory jurisdiction vested under Article 227 of the Constitution of India. So, firstly on such technical ground, this petition, being against the impugned interim order passed by WAKF Board under the vested discretionary jurisdiction is not entertainable. (B) Apart from the aforesaid, it is also settled proposition of law that plaintiff [who is respondent No.3 in the present matter] is a sole Dominus Litus of his case and he cannot be insisted to implead any other person as a party in his suit contrary to his wish unless the same is necessary under the compelling circumstances of the case. In the available circumstances we have not found any such compelling circumstances. So, on such count also, the impugned order does not require any interference at this stage. In the available circumstances we have not found any such compelling circumstances. So, on such count also, the impugned order does not require any interference at this stage. However, it is observed that at the subsequent stage of the trial of the impugned suit including the stage of final arguments, the petitioner herein shall be at liberty to take the objection of the non joining of the necessary parties and pursuant to it, it is observed that on raising such objection the same shall be considered by the Tribunal in accordance with law. 5. In the course of arguments, petitioner’s counsel has apprised us that although his application under Order 1 rule 10 of the CPC has been dismissed but in the light of his pleadings of the written statement on the aforesaid objection regarding non-joining the necessary parties, the separate issue has not been framed by the Tribunal and prayed for appropriate direction to the tribunal in this regard. 6. In the aforesaid discussion and legal position, this petition is hereby dismissed at this stage with the aforesaid observation and liberty to the petitioner with the aforesaid direction to the Tribunal, however, considering the oral prayer of the petitioner counsel the petitioner is extended a liberty to file an appropriate application under Order XIV rule 5 of CPC to frame the additional issue in the light of the pleadings relating to the aforesaid objection before the Tribunal within 15 days and pursuant to it the Tribunal is directed to consider and decide such application after extending the opportunity of hearing to the other side keeping in view that issue should also be framed on the additional and special pleadings of the written statement. 7. The petition is dismissed but with aforesaid observation, liberty and directions. 8. There shall be no order as to the costs.