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2017 DIGILAW 24 (UTT)

Gayasuddin v. State of Uttarakhand

2017-01-11

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma , J. 1. This petition is instituted against the order dated 3.10.2016 rendered by learned Additional Civil Judge (I) Senior Division, Dehradun in O.S. No.62 of 2014. 2. Key facts, necessary for adjudication of this petition, are that the petitioner instituted the O.S. No.62 of 2014 with the prayer to declare the order dated 31.10.2007 passed by the Collector, Dehradun in Mutation Case No.43 of 2007 to be null and void and further, declaring the title of the property, in question, in favour of the petitioner/plaintiff. A permanent injunction was also sought directing the respondents/defendants not to interfere in his peaceful possession of the property in question. 3. During pendency of suit, petitioner moved an application under Order 6 Rule 17 C.P.C. along with Order 1 Rule 10 C.P.C. before the Trial Court. According to the averments made in this application, respondent nos.2 and 3 sold the property in question vide four sale deeds dated 29.1.2013 in favour of Harish Mehta, Ramji Sethi, Smt. Mamta Anand and Sumit Anand. By way of amendment, petitioner wanted to incorporate the factum of sale deeds and also to implead the purchasers as defendants under Order 1 Rule 10 C.P.C. 4. The application was contested. The Trial Court dismissed the application by the impugned order dated 3.10.2016. Hence this petition. 5. I have heard learned counsel for the petitioner as well as learned Brief Holder for the State and gone through the order carefully. 6. Petitioner came to know about the sale deed dated 29.1.2013 during the course of contempt proceedings pending in this Court. He ought to have incorporated this fact in his plaint. The suit was instituted by the petitioner in the year 2014 and the application has been preferred belatedly in January, 2015. The presence of purchasers of the property, on the basis of sale deeds dated 29.1.2013, is not necessary for adjudication of the civil suit filed by the petitioner. The purchasers are neither necessary parties nor the proper parties. The suit can be adjudicated in their absence. The purchasers would be bound by the decree passed in the suit under the Transfer of Property Act. The Courts should be liberal in allowing the prayers for amendment, if necessary, however the application should be filed expeditiously at the earliest stages of the suit. The suit can be adjudicated in their absence. The purchasers would be bound by the decree passed in the suit under the Transfer of Property Act. The Courts should be liberal in allowing the prayers for amendment, if necessary, however the application should be filed expeditiously at the earliest stages of the suit. The applicant has to prove that despite his exercising due diligence, certain facts could not be incorporated in the plaint. 7. The amendment sought by the petitioner is not necessary for the purpose of determining the real question in controversy between the parties. The necessary parties are parties ‘who ought to have been joined’, that is, parties necessary for the constitution of the suit without whom no decree at all can be passed. 8. In the instant case, as noticed hereinabove, the petitioner, all throughout, knew about the sale deeds dated 29.1.2013 and despite that, he has not mentioned this fact in his plaint. 9. Accordingly, there is no merit in this petition and the same is hereby dismissed.