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2017 DIGILAW 2370 (RAJ)

Naresh Taldar S/o Shri Mohan Lal Taldar v. Kalimuddin Bohra S/o Late Shri Taher Ali Bohra

2017-11-01

DINESH MEHTA

body2017
JUDGMENT : DINESH MEHTA, J. 1. Invoking extra-ordinary supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner has questioned correctness of the order dated 13.02.2017 passed by the learned Additional Senior Civil Judge, Banswara (hereinafter referred to as the ‘Trial Court’), rejecting petitioner's application under Order I Rule 10 of the Code of Civil Procedure. 2. Shorn of unnecessary details, succinctly stated the factual matrix of the case at hand is that the respondent No. 1 filed a suit for permanent & mandatory injunction against the Municipal Council, Banswara, inter alia, seeking an order of injunction restraining it from interfering with the construction raised by him. 3. During the pendency of the suit, the petitioner filed an application dated 15.02.2016, indicating that it is on the basis of the complaints made by him, the Municipal Council had sprung into action and that the petitioner's ancestral property/house is situated just behind the Fakhri Petrol Pump adjacent to which, plaintiff's offending construction is existing. 4. The plaintiff opposed the petitioner's request of impleadment. 5. The said application under Order I Rule 10 of the Code of Civil Procedure filed by the petitioner has however been rejected by the learned Trial Court, with the following observations:— ^^i=koyh dk voyksdu fd;k x;k rFkk izLrqr U;kf;d n`"Vkar dk Hkh llEeku voyksdu fd;k x;k ,oa ;FkklEHko ekxZn'kZu izkIr fd;s x;sA fopkjk/khu izdj.k esa dyheqfnnu }kjk uxj ifj"kn ds fo:) fu"ks/kkKk ds vuqrks"k ckcr mDr izdj.k dks izLrqr fd;k x;k gS vkSj fookfnr LFky ds lac/ka esa ;fn izkFkhZ ujs'k rynkj }kjk dksbZ f'kdk;r dh xbZ gS vkSj mldh f'kdk;rks ij gh fdlh izdkj dh dksbZ dk;Zokgh l{ke izkf/kdkjh }kjk dh xbZ gS vFkok ugha dh tk jgh gS] rks bl laca/k esa izkFkhZ vius Lrj ij dk;Zokgh djus ds fy;s LoRka= gSA fopkjk/khu izdj.k esa dyheqfnnu }kjk uxj ifj"kn ds fo:) vuqrks"k dh izkFkZuk dh xbZ gSA izkFkhZ ujs'k rynkj ds fo:) fdlh izdkj dk dksbZ vuqrks"k oknh i{k }kjk ugh pkgk x;k gS vkSj fopkjk/khu izkFkZuk i= esa Hkh tks rF; crk;s x;s gS] mudsk ns[krs gq, /kkjk 1 fu;e 10 flfoy izfØ;k lafgrk ds rgr ujs'k rynkj dks i{kdkj ds :Ik esa la;ksftr fd;s tkus dk dksbZ vkSfpR; izrhr ugha gksus ds dkj.k izkFkZuk i= [kkfjt fd;k tkrk gSA i=koyh okLrs is'k gksus tokc nkok fnukad 22@3@17 dks is'k gksA^^ 6. Mr. Mr. Narendra Thanvi, learned counsel appearing for the petitioner/applicant, submitted that the Court below has seriously erred in rejecting petitioner's application, seeking impleadment. Mr. Thanvi contended that the Trial Court has cursorily rejected the petitioner's application, without considering the petitioner's contentions and appreciating the facts obtaining in the present case. Pointing out from the pleadings of the plaint, Mr. Thanvi submitted that the plaintiff has himself stated that the action of the proposed demolition is being taken, pursuant to the petitioner's/applicant's complaint. He invited attention of this Court towards para No. 4 of the plaint and towards the contents (para No. 5) of the application and submitted, that it is not only the petitioner's/applicant's complaint, as a result whereof, the action is being taken by the Municipal Council, there is yet another reason for which, the petitioner wanted to indulge, viz., petitioner's parental house is situated adjacent to the disputed site, where the petitioner goes quite frequently. He contended that the petitioner's right of ingress and express to his parental house as well as the other person's right of way has been adversely affected by the offending construction; for which, the petitioner was required to be heard in the suit proceedings. 7. Mr. Thanvi argued that the Court below has found the petitioner's concern to be valid and that is why, it has observed that the petitioner/applicant may take up separate proceedings for raising grievance about the construction in question. 8. Mr. Arpit Bhoot, learned counsel appearing for the respondent No. 1.plaintiff, submitted that the petitioner is a busy body, an RTI Activist, who is habitual of filing complaints and entering into unnecessary and unwarranted litigation. He contended that none of the petitioner's individual rights are at peril, on account of the plaintiff's construction, which otherwise is in conformity with law. 9. All the parties cited various judgments in support of their cause. However, without going into the contentions of the parties and without going into the applicability of the judgments, this Court, looking to the very nature of the order, deems it appropriate to quash and set aside the same. A bare look at the order impugned reveals that the Court below has not delved upon the rival contentions and has cursorily rejected petitioner's application completely overlooking the pleadings & arguments. The order under scrutiny is per se non-speaking and unreasoned. 10. A bare look at the order impugned reveals that the Court below has not delved upon the rival contentions and has cursorily rejected petitioner's application completely overlooking the pleadings & arguments. The order under scrutiny is per se non-speaking and unreasoned. 10. On this short ground, the order impugned dated 13.02.2017 is quashed and set aside. The learned Trial Court is directed to decide the petitioner's impleadment application afresh. 11. Needless to observe that all the parties will be free to cite judgments in support of their contentions and the learned Trial Court shall decide the application under Order I Rule 10 of the Code of Civil Procedure, preferably within a period of two months from today, without being influenced by the findings and observation made by this Court. 12. The writ petition stands allowed in the aforesaid terms.