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2017 DIGILAW 1555 (RAJ)

Gordhan Singh v. Ashok @ Raju

2017-07-13

DINESH CHANDRA SOMANI

body2017
ORDER : Dinesh Chandra Somani, J. The instant petition under Article 227 of the Constitution of India has been filed by the petitioners assailing the order dated 30/09/2016 passed by Civil Judge & Judicial Magistrate, Kathumar, Alwar in Civil Suit No. 34/64/2009 titled as Ashok @ Raju v. Municipal Council, Kherliganj, whereby the application filed by the petitioners under Order 1, Rule 10 of CPC, was dismissed. 2. Material facts necessary for disposal of this petition are that the plaintiff/respondent No. 1 filed a civil suit against the defendant/respondent No. 2 and sought a decree for permanent injunction stating therein that plaintiff is Khatedar of land bearing Khasra No. 101 ad-measuring 0.44 Hectare situated in Village Kherliganj. It is also stated that for going to aforesaid Khasra No. 101, there is a 20 feet wide road into Khasra No. 99. It is also stated that due to lapse of sometime, survey No. 101 was converted into Abadi land. The plaintiff prayed to restrain the defendant not to cause any obstruction in the way to his field. During pendency of the suit, plaintiff/respondent No. 1 sold the land of survey No. 101 to petitioner No. 1 Goverdhan Singh through registered sale deed and Goverdhan Singh sold some part of the land to petitioner No. 2 Praveen Kumar and some part of land to petitioner No. 3 Chandrapal. Thereafter, petitioners filed an application under Order 1, Rule 10 of CPC stating the above facts of transfer and prayed to implead them as plaintiff No. 2 to 4 respectively. The defendant/respondent No. 2 filed reply to the application and opposed the same. 3. After hearing learned counsel for the parties, learned trial Court dismissed the application filed by the petitioners. Being aggrieved with the said order, petitioners have approached this Court by way of this petition. 4. After hearing submissions of learned counsel for both the parties and perusing the material made available to us, it appears that plaintiff/respondent has sold his land bearing Khasra No. 101 to petitioner No. 1 Goverdhan Singh through registered sale deed and Goverdhan Singh sold some part of the property to the petitioner No. 2 and some part of the property to petitioner No. 3. Therefore, the petitioners have a right to continue the suit filed by the plaintiff/respondent No. 1 under the provisions of Order 22, Rule 10 of CPC. Therefore, the petitioners have a right to continue the suit filed by the plaintiff/respondent No. 1 under the provisions of Order 22, Rule 10 of CPC. The petitioners have filed the application for impleading them as plaintiff under Order 1, Rule 10 (2) of CPC, whereas they have a right to continue the suit under provisions of Order 22, Rule 10 of CPC and because of that the learned trial Court dismissed the application filed by the petitioners considering the provisions of section 52 of the Transfer of Property Act. Provisions of Order 22, Rule 10 of CPC reads ad infra :- 10. Procedure in case of assignment before final order in suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). 5. In view of above, the petitioners are entitled to be substituted in place of the plaintiff, to continue the suit. 6. During arguments, learned counsel for the petitioners prayed to pass appropriate order directing the learned trial Court to substitute them in place of the plaintiff, to continue the suit. 7. Therefore, in the interest of justice, the petition is partly allowed, impugned order dated 30/09/2016 is set aside and it is directed that the petitioners be substituted, in place of the plaintiff to continue the suit under provisions of Order 22, Rule 10 of CPC. 8. The petition is disposed of accordingly. 9. The stay application also stands disposed of.