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2018 DIGILAW 889 (RAJ)

Mahendra Kumar v. Ashok Kumar

2018-04-03

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Dr. Pushpendra Singh Bhati, J. - This writ petition under Article 226 and 227 of the Constitution of India has been preferred claiming the following reliefs: "1. The order impugned dated 14.05.2013 passed by the learned Addl. Civil Judge (Senior Division) Jalore may kindly be quashed and set aside. 2. The application filed by the petitioner under Order 1, Rule 10 read with Order 6, Rule 17 CPC filed by the petitioners may kindly be allowed. 3. Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner." 2. The matter has been called out in the second round, but no one has put in appearance on behalf of the contesting respondents. However, learned counsel for the Municipal Council, which is a formal party, of course has provided assistance to this Court. 3. The pleaded case of the petitioners is that the petitioners filed a suit against the respondents stating therein that they had purchased a house situated at Manpura Colony, Jalore from their predecessor-in-title in the year 1992. On the other side of the house in question, there was a 4 ft. lane, which was used for easementary purposes, and the windows and ventilators of the said house belonging to the petitioners were open. The easementary rights were in operation for last 40 years. However, the respondents were trying to raise construction, with a view to create hindrance in lawful enjoyment of such easementary rights, and therefore, the suit for declaration of easementary rights and injunction was instituted. 4. It is contended by learned counsel for the petitioners that the petitioners subsequently came to know that the land adjoining the house of the petitioners was purchased jointly by Shri Ashok Kumar and Shri Manoj Kumar, and copy of the agreement to sale reflecting the same is on record as Annexure-2 dated 16.04.1994. 5. Looking to the joint ownership of the adjoining land, as aforesaid, the petitioners filed an application under Order 6, Rule 17 CPC read with Order 1, Rule 10 CPC praying for impleadment of Shri Manoj Kumar as party defendant in the suit, while incorporating the relief clause qua him. 5. Looking to the joint ownership of the adjoining land, as aforesaid, the petitioners filed an application under Order 6, Rule 17 CPC read with Order 1, Rule 10 CPC praying for impleadment of Shri Manoj Kumar as party defendant in the suit, while incorporating the relief clause qua him. However, the said application came to be rejected by the learned court below vide order dated 04.05.2011 on the ground that the petitioners failed to show the cause of action accrued to them against Shri Manoj Kumar. 6. Learned counsel for the petitioners thus tried to make out a case that since the aforementioned adjoining land is jointly owned by Shri Ashok Kumar and Shri Manoj Kumar, out of whom, only Shri Ashok Kumar is the party defendant in the suit instituted by the petitioners, therefore, any relief, if granted, would be incomplete, in absence of impleadment of Shri Manoj Kumar, the joint owner of the adjoining land. Meaning thereby, if the final adjudication of the suit is made in favour of the petitioners and against Shri Ashok Kumar, the defendant, then it will certainly have a direct bearing upon Shri Manoj Kumar, and as a consequence whereof, if Manoj Kumar does comply with the decree, there is every likelihood that the decree will be frustrated. Thus, the said order passed by the learned court below on 04.05.2011 is cryptic, and therefore, a challenge has been laid there against by way of filing S.B.Civil Writ Petition No. 623/2013, wherein this Hon'ble Court on 28.01.2013, while dismissing the said writ petition and upholding the impugned order of the learned court below, has made the following observations:- "It is for the petitioners to take appropriate steps in the matter as apparently the trial court by the impugned order has ruled on the fact whether Manoj Kumar is a necessary party or not. In any case this Court is inclined to interfere in the matter and the writ petition is, therefore, dismissed." 7. On such observation being made by this Hon'ble Court, the petitioners re-approached the learned court below with a detailed application setting out the exact details of the agreement regarding purchase of the aforementioned adjoining land, in which names of both Shri Manoj Kumar and Shri Ashok Kumar were there. 8. On such observation being made by this Hon'ble Court, the petitioners re-approached the learned court below with a detailed application setting out the exact details of the agreement regarding purchase of the aforementioned adjoining land, in which names of both Shri Manoj Kumar and Shri Ashok Kumar were there. 8. After hearing learned counsel for the petitioners and learned counsel for the Municipal Council as well as perusing the record of the case, this Court finds that the petitioners are in fact justified in seeking impleadment of Shri Manoj Kumar as a party to the litigation, as the final adjudication of the suit for declaration of easementary rights and injunction shall be frustrated, in absence of impleadment of Shri Manoj Kumar, who is the joint owner of the adjoining land in question, and without his impleadment, proper and final adjudication, in regard to easementary rights arising out of the property in question cannot be made. 9. This Court also finds that the learned court below could not have dismissed the application seeking impleadment of Shri Manoj Kumar as party defendant in the suit, only on the ground that Shri Manoj Kumar was not raising any construction. Moreover, the injunction is a perpetual relief, and that, any kind of easementary right is also having an impact in perpetuity, and therefore, the joint ownership property, wherefrom the alleged threat to the easementary right of the petitioners flows, and which is subject matter of adjudication in the suit, requires both the owners of the said joint property as party to such litigation. 10. In the above view of the matter, the present writ petition is allowed and the impugned order 14.05.2013 passed by learned Addl. Civil Judge (Senior Division), Jalore is quashed and set aside and the application filed by the petitioners under Order 1, Rule 10 CPC read with Order 6, Rule 17 CPC is allowed. The learned court below is directed to implead Shri Manoj Kumar as party defendant in the suit instituted by the petitioners, and thereafter, to proceed, strictly in accordance with law.