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2019 DIGILAW 1648 (RAJ)

Anil Chandaliya v. Pawan Devi, Deven Bafna @ Pawan Jain

2019-05-24

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition for the following reliefs :- "a) by an appropriate writ, order or direction, the impugned order dated 15.04.2019 passed by learned Civil Judge, Marwar Junction, District Pali in Civil Original Case No. 63/2018 may kindly be quashed and set aside and the application filed by the petitioners under Order 1, Rule 10 read with section 151 CPC for impleading as party defendants in Civil Original Suit as well as Civil Misc. Application may kindly be allowed and the name of petitioners may kindly be impleaded as party-defendants in the Civil Original Suit No.63/2018 pending before the learned Civil Judge, Marwar Junction, District Pali." 2. The facts of the case in brief are that the Acharya Shri Bhikshu Samadhi Sthal Sansthan is a registered Society under the Rajasthan Society Act, 1958. The Society is governed by its own constitution and trust deed. The Head Office of Society is situated at Siryari, Tehsil Marwar Junction, District Pali, Rajasthan. A General House of the Society was held on 17.03.2018 and in this General House the resignation of respondent no.3 was accepted alongwith that of entire Executive Committee. Respondent no.4 thereafter was appointed as Election Officer while being authorized to hold new election of the Society as per provisions of the constitution of the Society. The election process thus commenced on 24.04.2018 for electing President and 21 Trustees. The respondent no.4 & 5 declared respondent no.6 as President of the Society and also declared the name of elected 21 Trustees (including the petitioners). 3. The respondent no.1 on 06.6.2018 filed a suit before the learned Civil Judge, Marwar Junction challenging election of the Society which was held on 24.04.2018 and sought relief for declaration and cancellation of election of the Society. Alongwith the suit an application for permanent injunction as well as for temporary injunction under Order 39, Rule 1(2) CPC was also preferred. 4. The petitioner preferred an application on 30.03.2019 under Order 1, Rule 10 read with section 151 of CPC seeking relief of impleadment as defendant in the civil suit. The learned court below after hearing the parties dismissed the application under Order 1, Rule 10 read with section 151 of CPC vide impugned order dated 15.4.2019. 5. Counsel for the petitioner submits that the constitution of the Society contains procedure for electing President and 21 Trustees. The learned court below after hearing the parties dismissed the application under Order 1, Rule 10 read with section 151 of CPC vide impugned order dated 15.4.2019. 5. Counsel for the petitioner submits that the constitution of the Society contains procedure for electing President and 21 Trustees. Counsel for the petitioner submits that the learned court below has committed an illegality as it has considered the litigation to be against the Society, whereas prayer of suit makes it clear that the plaintiff is seeking quashing of elections held on 24.04.2018 and is further seeking nullity of elections of the Trustees. Counsel for the petitioner has referred to prayer (b) of the suit, which read as follows :- Counsel for the petitioner submits that the petitioner shall be directed affected by prayer (b) if the suit is allowed. 6. Counsel for the respondent, however, while opposing petitioner's submission submits that the petitioner's application for impleadment at no place carried any whisper about the effect being caused upon the petitioner upon prayer (b) of the suit was allowed. Counsel for the respondent submits that the petitioner has nowhere pleaded as to what effect would be caused to him if he is not impleaded as party and the suit is finally adjudicated. Counsel for the respondent has drawn attention of this Court towards constitution of Society, which as per him lays down responsibility upon Mantri to conduct all the legal proceedings on behalf of the Society in-question. Counsel for the respondent also submitted that as per the constitution every representation of petitioner in any court of law has to be made only by the Mantri. The relevant portion portion of constitution of Society as pointed out by counsel for the respondent read as follows :- 7. Counsel for the respondent submits that Mantri was the only necessary party and this Court has already allowed him to become party vide dated 07.3.2019 passed in S.B. Civil Writ Petition No.13660/2018 (Shri Khayali Lal Tater vs. Pawan Devi Deven Bafna @ Pawan Jain & Ors.). Counsel for the respondent has drawn attention of this Court towards the judgment of Hon'ble Apex Court in Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd., & Ors., reported in 2010(4) Civil Court Cases 295 (S.C .); relevant portion read as follows :- " 8. Counsel for the respondent has drawn attention of this Court towards the judgment of Hon'ble Apex Court in Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd., & Ors., reported in 2010(4) Civil Court Cases 295 (S.C .); relevant portion read as follows :- " 8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1, Rule 10(2) of Code of Civil Procedure ('Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: "Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. " Counsel for the respondent further pleaded that plaintiff being dominus litis may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. 8. After hearing learned counsel for the parties, this Court is of the opinion that a bare perusal of prayer clause (b) of the plaintiff's suit makes it is clear that he is seeking quashing of elections held on 24.04.2018. Furthermore, this Court also takes note of the fact that in case the suit was only for the purpose of adjudication of some claim against the Society, then there is no doubt that constitution of society has to be followed and the Mantri who was entitled to represent the Society. It is settled law that for comprehensive adjudication for permanent injunction if a party is directly staking claim, then the party ought to have been allowed to participate in the adjudication as it would facilitate peripheral assistance to the learned court shall ensure that multiplicity of litigation does not take place. It is settled law that for comprehensive adjudication for permanent injunction if a party is directly staking claim, then the party ought to have been allowed to participate in the adjudication as it would facilitate peripheral assistance to the learned court shall ensure that multiplicity of litigation does not take place. The learned court below has erred in not appreciating that the petitioner has a direct stake in election and declaration was being sought on their being elected, which could not have been done without impleading the petitioners as party to the litigation. 9. In light of the aforesaid observation the writ petition is allowed. The impugned order dated 15.04.2019 is quashed and set aside and the application under Order 1, Rule 10 read with section 51-->151 of CPC as preferred by the petitioners is allowed. The proceedings shall take place strictly in accordance with law.