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2016 DIGILAW 372 (MP)

Rajendra Prasad v. Vidhyaram Sharma

2016-05-04

ANAND PATHAK

body2016
ORDER 1. The petitioners/plaintiffs have preferred this writ petition challenging the order dated 17.7.2009 (Annexure P-1) passed by the Civil Judge Class-II, Mahgaon, District Bhind in Civil Suit No.645-A/1998, whereby application under Order 1 rule 10 read with sections 107 and 151 CPC preferred by the respondent No.1 for impleading him as a defendant in the suit has been allowed. 2. Petitioner No.2 is the Gram Panchayat Gijurra through its Sarpanch and along with one other person has filed suit for declaration and permanent injunction for securing the public land, which intended to be grabbed by respondents No.2 to 5/defendants through a collusive decree. According to the petitioners, respondents No.2 to 5 are real brothers and therefore, through collusion they were trying to grab the land of Gram Gijurra, Tahsil Mahgaon District Bhind meandering through different litigations. 3. The controversy seems to have chequered history as narrated in the petition memo. Main thrust of submissions of the petitioners/plaintiffs is that plaintiffs being dominus litis are pursuing a public cause. The respondents/defendants have already obtained a collusive decree and under the garb of this application under Order 1 rule 10 read with sections 107 and 151 CPC they are trying to distract the controversy in a different direction. Therefore, according to petitioners, the order of the trial Court needs to be set aside as the respondent No.1 is neither a necessary nor a proper party to the proceedings. 4. Per contra, respondent No.1 (defendant before the trial Court) has contested the submissions of the petitioners by saying that he is relative of deceased Goura, who happens to be wife of one Pahalwan, who in turn, is one of the legal representatives of Sajra family. The suit property earlier belongs to this family, therefore, he is a proper and necessary party in the proceedings and therefore, the trial Court has rightly allowed the application preferred under Order 1 rule 10 CPC by respondent No.1/defendant and has permitted him to be impleaded as a defendant. 5. Heard counsel for the parties with consent and with their assistance perused the record. 6. 5. Heard counsel for the parties with consent and with their assistance perused the record. 6. Perusal of the plaint filed with the petition as Annexure P-2 reveals that the plaint is in representative capacity wherein, plaintiff No.1 Gram Panchayat, Gijurra through its Sarpanch (as one of the plaintiffs) has filed suit in respect of piece of land on which, property as (Panchayat Bhavan, Dispensary and Girl's School) have been constructed therefore, for this public purpose, the suit property is required. The allegation of the petitioners/plaintiffs in respect of collusive suit also suggest that the respondents/defendants in collusion have tried to transfer the suit property in their name through collusive suit. 7. The plaintiffs being dominus litis has the right to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. The plaintiff cannot be forced to add the party although, if a party shows fair semblance of title and interest, he can certainly file an application for impleadment. But here in the present case, the distinct relatives of respondent No.1 (Sahdeva and Kriparam) had already moved an application for impleadment in the suit, which was rejected by the trial Court vide order dated 14.6.2004 against which, a writ petition vide Writ Petition No.2248/2004 was preferred, and the same was also got dismissed by this Court vide order dated 1.11.2004. The other respondents under the disguise of present respondent No.1 are trying to be impleaded as party-defendants. 8. The test for determining whether a party is a necessary party are :- (i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question. (ii) It should not be possible to pass an effective decree in absence of such a party. 9. The plaintiff cannot be required to change the nature of his suit on the ground that the addition of a party is necessary to avoid multiplicity of suit. Here in the present case, no such exigency is involved, therefore, the trial Court has erred in allowing the application under Order 1 rule 10 CPC preferred by respondent No.1 for impleading him as defendant. No adversity would be caused to respondent No.1, if he is not impleaded as defendant in the present litigation. 10. Here in the present case, no such exigency is involved, therefore, the trial Court has erred in allowing the application under Order 1 rule 10 CPC preferred by respondent No.1 for impleading him as defendant. No adversity would be caused to respondent No.1, if he is not impleaded as defendant in the present litigation. 10. Resultantly, the order dated 17.7.2009 (Annexure P-1) passed by Civil Judge Class II, Mahgaon, District Bhind in Civil Suit No.645-A/1998 is hereby set aside. Name of respondent No.1 is directed to be struck off from the array of the defendants, if he is already impleaded as defendant in the array of defendants. 11. Thus petition is allowed. The proceedings of the trial Court be initiated from the stage where the stay order dated 12.8.2009 was passed by this Court in the present case.