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2019 DIGILAW 1123 (RAJ)

Bhonri Devi v. Prabhu

2019-04-12

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT Sanjeev Prakash Sharma, J. - Petitioner by this writ petition assails the order dated 01.03.2016 whereby, the application filed under Order 1 Rule 10 CPC for impleadment was dismissed by the trial Court. 2. Brief facts, which are to be noted for disposal of suit preferred by the respondent are that one suit was preferred by the respondent-plaintiff praying for cancellation of Power of Attorney given to the defendant-petitioner herein. While the suit was pending, another suit was filed by the respondent-plaintiff for cancellation of the sale-deed executed by the Power of Attorney Holder in favour of the applicants. The sale-deed was upheld and the suit preferred by the respondent was dismissed. Against the said order and the decree, first appeal is pending. In another case before the Board of Revenue, the respondent challenged the action of Power of Attorney Holder in getting revenue record entries on the basis of said sale-deed, which has been decreed in his favour. 3. The petitioners-applicants Bhonri Devi & Premlata in whose favour the registered sale deed was executed by the Power of Attorney Holder, have moved application for impleadment in the trial Court after the matter was remanded by the Appellate Court in the proceedings taken upto against the suit which was dismissed, by the respondent-plaintiff. They pray therefore, that they are necessary parties and were required to be heard in the present suit wherein, a prayer has been made for cancellation of Power of Attorney, which was the basis of the sale-deed that was executed in their favour. The application has been rejected vide impugned order dated 01.03.2016. 4. Learned counsel for the petitioner submits that they are necessary parties and are required to be heard in the present suit as a result of which, the present suit would directly affect their rights relating to the sale-deed, which has been executed in their favour. 5. Per contra, learned counsel appearing for the respondent submits that in the suit, which he had originally filed challenging the sale-deed, he had mentioned about the present suit having been filed for cancellation of Power of Attorney. 5. Per contra, learned counsel appearing for the respondent submits that in the suit, which he had originally filed challenging the sale-deed, he had mentioned about the present suit having been filed for cancellation of Power of Attorney. Thus, the applicants were having knowledge of the present suit but they did not move any application for impleadment at any stage and now when the matter has been only remanded for final arguments afresh to the trial Court with regard to the limited directions issued by the Appellate Court, the present application is misconceived and is with the purpose to delay the proceedings and they may not be allowed to be impleded as a party. Learned counsel supports the order passed by the trial Court dated 01.03.2016. 6. I have considered the aforesaid facts and find that the application moved by the petitioner for impleadment under order 1 Rule 10 CPC is at the stage where the matter was remanded by the Appellate Court, vide its order dated 21.08.2013 limiting the trial Court to hear both the parties with regard to the documents and the certified copy of the Power of Attorney and passed orders on merits accordingly. It is noticed that both the applicants Bhonri Devi & Premlata were having full knowledge of the present proceedings assailed before the trial Court and no application for impleadment was moved at any stage. However, it is their submission that only after the decision in their own suit that they could have moved the aforesaid application. 7. In Pujya Sindhi Panchayat vs. Prof. C.L. Mishra and Ors., AIR 2002 Rajasthan Page 274, Division Bench of this Court considering the law as laid down by the Supreme Court in Shivdeo Singh vs. State of Punjab, AIR 1963 SC page 1909 , held that the applicants are not to heard on the impleadment application at the final stage. 8. In Udit Narain Singh Malpaharia, Appellant vs. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the Apex Court has held that who can be said to be necessary or proper party. It has held as under:- "To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. It has held as under:- "To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding." 9. In the opinion of this Court, the question to be examined on the aforesaid facts which are on record is whether the applicants could be treated as necessary or proper parties. In the present suit, a dispute between the parties is only relating to cancellation of power of attorney and for adjudication of the said dispute, the applicants who are the beneficiaries and have purchased the property through sale deed executed by the power of attorney holder cannot be said to be necessary parties without whom the present suit cannot be decided. However, for complete adjudication of disputes which may arise on account of the disputed power of attorney, the petitioners-applicants have to be considered as proper parties. The outcome of the present suit would directly affect the rights of the present applicants. Hence, they are proper parties who are required to be heard. 10. In view of above findings, the writ petition is allowed. The order dated 01.03.2016 is set aside with directions to the learned trial court to implead the petitioners as party to the suit and proceed with the suit accordingly and decide the same expeditiously.