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2017 DIGILAW 1437 (HP)

Hanish Sharma v. Sunil Chutani

2017-12-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Plaintiff/respondent No.1 herein instituted a suit for permanent prohibitory injunction besides for mandatory injunction, against one Smt. Rama Sharma AND others, qua, the entire built up portion, of A residential set comprised of two rooms, two stores, kitchen, bath and open compound in front of the residential set, in the ground floor of Madho Asharam, Upper Kaithu, Shimla. It is averred in the plaint by plaintiff Sunil Chutani, that proforma defendant/respondent No.4 herein, had, under a registered sale deed of 2.9.1983, purchased the said property, from, defendant No.2 Sh Jagdish Chand. A perusal of the aforesaid sale deed, as well as, of the plan annexed therewith, the open compound in front of the said set, measuring 39.55, was also sold by defendant No.2 to proforma defendant Puran Chand Chawla, who is owner/landlord, of the plaintiff. In the sale deed it was specifically mentioned that along with the built up area, AND the open space, shown, in the plan and tatima annexed therewith, all the rights of light, or sunshine and existing passages, were, given by defendant No.2 to proforma defendant Puran Chand Chawla, who is the landlord of the plaintiff/respondent No.1 herein, (i) thereupon, hence, the plaintiff being a lawful tenant of the premises was legally entitled to, without any interruption and interference from the defendants side and from their family members etc., use the said premises under his legally tenancy, since, the time of purchase of the premises by the plaintiff, from, the proforma defendant. The proforma defendant, has, sold the premises i.e. on flat situated in the ground Floor, consisting to two room, one kitchen, one bath-cum-W.C. and verandah of the building known as Madho Asharam, building along with all rights, of easement, common paths, common stairs, common drainages, common sewerage, air, light, water, sun light, all other fittings fixtures etc., whatsoever in the said property belonging to or appurtenant thereof. As per clause 15, the plaintiff has also been given right, to use the common path which has already been provided by the previous owner i.e. defendant No.2 as per the norms of Town and Country Planning Department and as per the rules of the Municipal Corporation, Shimla AND path whereof is clearly shown in the plan, attached, with the sale deed of the proforma defendant executed by defendant No.2 in his favour. In the plan, an area, of, open compound has been shown as 39.55 sq. yards, are whereof, falls in front of the flat, under the occupation of the plaintiff, as a tenant AND now by virtue of sale deed, the plaintiff hence claims his holding an unhindered rights, vis-a-vis the users of the said open compound. He avers of with, defendants No.1 and 2, having inimical relations vis-a-vis the plaintiff and his family members, hence, sequelling theirs erecting iron rods and other waste material in front of the premises of the plaintiff AND theirs, not, removing them, despite requests made upon them by the plaintiff and his family members. Consequently, the plaintiff instituted a suit for rendition, of, a decree of permanent prohibitory injunction against the defendants for interdicting them, from, theirs not, obstructing the plaintiff, from his using all easementary rights, vis-a-vis common path, besides vis-a-vis all rights exerciseable, upon, the suit property, by the proforma defendant, under whom, he is a tenant, after, its purchase by him from defendant No.2 besides claims, for, a decree for mandatory injunction being rendered, for the defendants being directed, to dismantle iron rods erected by them, for, prohibiting him to make accesses to his tenanted premises. 2. The plaintiff's suit, was, resisted by the defendants by theirs instituting a written statement thereto, wherein, they contended that the compound (lintal), whereon, rights of easement stand asserted, by the plaintiff, rather falling to the ownership of the defendants concerned AND the plaintiff in the garb of his espousing, of, his purportedly holding a valid right, to thereon exercise easementary rights, rather hence not holding any empowerment, to claim renditions of decrees of permanent injunction, besides, of, mandatory injunction. 3. However, during, the pendency of the suit, an application, was filed by defendant Rama Sharma, before the learned trial Court, application whereof was cast under the provisions of Order 1, Rule 10 of the CPC, wherein, she sought impleadment, in the array, of defendants), of, one Hanish Sharma, her son. The application was dismissed by the learned trial Court. 3. However, during, the pendency of the suit, an application, was filed by defendant Rama Sharma, before the learned trial Court, application whereof was cast under the provisions of Order 1, Rule 10 of the CPC, wherein, she sought impleadment, in the array, of defendants), of, one Hanish Sharma, her son. The application was dismissed by the learned trial Court. Being aggrieved there from, she assailed the apposite orders, by instituting before this Court a CMPMO bearing No.397 of 2011, CMPMO whereof was disposed, of by this Court, with, a pronouncement, that the dismissal of the apposite application, by, the learned trial Court, yet not affecting the rights of the applicant, who seeks to institute an independent suit. Apparently, readings, of, orders pronounced by this Court, upon, CMPMO No. 397 of 2011, as arose before it, against, the pronouncement recorded by the learned trial Court, upon, an application cast, before it under the provisions of Order 1, Rule 10 of the CPC, does not make any categorical disclosure, of this Court, affirming the pronouncement recorded by the learned trial Judge, rather it only reserved rights vis-a-vis the applicant concerned, to institute a fresh suit. The above effect of the aforesaid pronouncement recorded by this Court, is, to be construed along with subsequent there to, application being instituted before the learned trial Judge, by one Hanish Sharma, the son of codefendant No.1, application whereof was cast under the provisions of Order 1, Rule 10 of the CPC, wherein, he sought his impleadment, as a party, to Civil Suit No. 19- 1/2014/2004. The ground reared in the application, was of, one Hanish Sharma acquiring an interest upon khasra No.1786/1 and 1788, owned by the non-applicant/defendant No.1, acquisitions whereof, occurred, under, a registered deed of settlement made before the learned Sub Registrar (Urban), Shimla, AND in consequence whereof. a mutation stood attested vis-a-vis Hanish Sharma. The acquisition of interest, by one Hanish Sharma, upon, the suit property, under a registered deed of settlement, was contested by the non-applicant. a mutation stood attested vis-a-vis Hanish Sharma. The acquisition of interest, by one Hanish Sharma, upon, the suit property, under a registered deed of settlement, was contested by the non-applicant. The learned trial Court, dismissed, the application, by assigning the reason (i) that with the trial Court previously dismissing, under, an order recorded by it on 13.9.2011, an application preferred before it by Ram Sharma, wherein, she sought the impleadment, of, Hanish Sharma, as a party to the lis, (ii) hence the subsequent thereto, a similar therewith application, being not maintainable, (iii) also hence, the espousals, made, in the application at hand, of, one Rama Sharma, not being vigilant in protecting the interests of, one Hanish Sharma, hence, being eroded of its vigour. The further reason assigned, by the learned trial Court, for dismissing the applicant's application, was rested, on the ground of this Court, under a pronouncement recorded on 8.8.2012 in CMPMO No. 397 of 2011, reserving a right vis-a-vis the applicant, who seeks to institute an independent suit. 4. Even if, assumingly, defendant No.1, was, by instituting an application prior, to, the institution of the extant application, hence displaying her pro-active vigilance, in protecting the interests, in the litigation, of one Hanish Sharma also thereupon the aforesaid vigilance shown by co-defendant No.1, in taking care, of, the interests, in the apt litigation, of, one Hanish Sharma, though does erode the vigour of the ground, reared, in the extant application, of her purported failures, in watching his interests in the litigation hence leading him, to seek his impleadment in the extant suit, comprised in his striving to seek his impleadment, yet all effects thereof, are, disrobed of their vigour by (a) of the Court being enjoined to assess, from, material on record qua the necessities, of, impleadment of Hanish Sharma, as a party, to the lis; (b) it being enjoined also to assess, from, the existing material on record, qua the refusals to implead one Hanish Sharma, as a party to the lis, leading to multiplicities of litigation besides its leading, to, an inefficacious unexecutable decree being pronounced, upon, the suit property, (c) importantly when a necessary party, to, the lis remains unimpleaded in the apposite array, of defendants. However, the learned trial Judge, omitted to mete reverence to all the aforesaid trite relevant rubrics, governing, the exercise of jurisdiction vested in her/him, by the mandate of the provisions of Order 1, Rule 10 of the CPC, (c) especially when there was an abundant display, in, the application at hand, in respect of, acquisition of interests qua the suit property by Hanish Sharma, thereupon, his impleadment in the apposite lis, was, peremptory, for precluding, the ill mishaps of an inefficacious unexecutable decree vis-a-vis Hanish Sharma, being pronounced, in the apposite suit, (d) also for precluding the ill effects, of, one Hanish Sharma, despite, his being a necessary party, to the suit, being driven to file a separate suit, for, asserting his claims in the suit property, (e) acquisitions of interest whereof, has occurred, in pursuance to a registered family settlement executed by Rama Sharma vis-a-vis Hanish Sharma, (f) even though validity thereof, is questioned, yet unless Hanish Sharma is permitted, to be joined as a co-defendant in the apposite lis also is enabled, to hence rear a contention, for, validating the settlement deed, (g) besides when thereafter, it is incumbent, upon, the learned trial Court, to strike issues there on, AND to receive thereon, evidences of the respective litigants and to also pronounce an effective adjudication, upon, the merits of the respective espousals, of the litigants concerned, (h) thereupon, it was grossly immature besides in sagacious, for, the learned trial Court, to reject the apposite application, merely, on the ground of a previous application instituted by his mother, being rejected. Moreover, the ground meted in the impugned order, of this Court while making a decision, in CMPMO No. 397 of 2011, reserving, a right vis-a-vis the applicant to institute a separate suit, also does not, operate as any fetter or restrictions, upon, one Hanish Sharma, to, subsequent to co-defendant No.1, failingly instituting an application under Order1, Rule 10 of the CPC, before, the learned trial Court, hence casting another application, under, the provisions of Order 1, Rule 10 of the CPC, more so, when multiplicity of litigations would hence stand meritoriously baulked. 5. In view of the above, the instant petition, is allowed and the impugned order is quashed and set aside. 5. In view of the above, the instant petition, is allowed and the impugned order is quashed and set aside. In sequel, the application instituted by the petitioner before the learned trial Court, under the provisions of Order 1, Rule 10 of the CPC is allowed and he is ordered to be impleaded as a co-defendant in the memo of parties. The parties are directed to appear before the learned trial Court on 12.01.2018. All pending applications also stand disposed off. No order as to costs. Records be sent back forthwith.