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2019 DIGILAW 742 (RAJ)

Khayali Lal Tater S/o Sh. Mohan Lal Tater v. Pawan Devi, Deven Bafna @ Pawan Jain W/o Harak Chand

2019-03-06

DINESH MEHTA

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JUDGMENT : DINESH MEHTA, J. 1. Instant writ petition has been preferred against the order dated 05.01.2019, passed by learned Civil Judge and Judicial Magistrate, Marwar Junction, Pali (hereinafter referred to as the ‘trial Court’) vide which the petitioner’s application dated 25.10.2018 filed under Order I Rule X read with Order VII Rule 1 of the Code of Civil Procedure, 1908 (in short ‘the Code’) has been rejected. 2. Succinctly stated the facts giving rise to the present writ petition are that plaintiff-Pawan (respondent No. 1 herein) instituted a suit for injunction and cancellation of election of Acharya Shri Bhikshu Samadhi Sthal Sansthan (hereinafter referred to as ‘the Society’) held on 24.04.2018. While filing the suit the plaintiff had impleaded the ‘Acharya Shri Bhikshu Samadhi Sthal Sansthan’ as defendant No. 1; Surendra Kumar Surana, the earlier President as defendant No. 2, Loonkaran Chhajer and Hansraj Betala the Election Officers as defendants No. 3 and 4 respectively and Khayali Lal Tater (present petitioner); the newly elected President in the contentious election, as defendant No. 5. 3. To complete the narration of facts, it may be noticed that Nirmal Sri Srimal, who has been elected as Secretary was also impleaded as a party by the trial Court (respondent No. 7 in the present writ petition). The petitioner, being defendant No. 5 who had been elected President of the society filed the above referred application dated 25.10.2018, and contended that the plaintiff has impleaded Surendra Kumar Surana as a defendant though no relief against him has been claimed. It was also alleged that the plaintiff filed the present suit in collusion with defendant No. 2, the erstwhile President so as to serve the cause of the plaintiff. While asserting that the suit in question suffered from misjoinder of parties, the petitioner in her application prayed that defendant No. 2-Surendra Kumar Surana, be removed from array of defendants. 4. The learned trial Court after considering the material available on record and hearing the rival contentions dismissed the petitioner’s application, vide its order dated 05.01.2019 impugned in the present writ petition, inter-alia observing that the plaintiff is ‘dominus litis’ of his case. It was also held that the allegations of collusion and malafide levelled by the applicant/petitioner are required to be proved, which can be proved only after completion of evidence. It was also held that the allegations of collusion and malafide levelled by the applicant/petitioner are required to be proved, which can be proved only after completion of evidence. The trial Court has further observed that the defendant No. 2- Surendra Kumar Surana may not be a necessary party, but he appears to be a proper party as he was holding the Office of President, immediately prior to the subject election. 5. Impugning the aforesaid order dated 05.01.2019, Mr. Aklovya Bhansali, learned counsel for the petitioner submitted that trial Court has erred in rejecting petitioner’s application seeking deletion of said Surendra Kumar Surana, the defendant No. 2. He argued that provisions of Order I Rule 3 of the Code of Civil Procedure are very clear and only those persons can be impleaded as party defendants against whom any relief has been claimed. He further submitted that a perusal of the written statement filed by the defendant No. 2 clearly suggests that plaintiff and defendant No. 2 are having collusion, as the defendant No. 2 has filed written statement admitting the contents of the plaintiff’s plaint. Learned counsel further contended that neither any relief has been sought nor any allegation have been levelled against defendant No. 2, hence, he is an unnecessary party to the suit. It was also argued that the plaintiff is essentially serving the cause of the defendant No. 2, who had since resigned. 6. Mr. Thanvi, learned counsel for the respondent No. 3- Surendra Kumar Surana, on the other hand, submitted that the petitioner, who is a defendant in the proceedings, cannot maintain an application seeking deletion of co-defendant, namely Surendra Kumar Surana. He submitted that the petitioner’s application under consideration so also his writ petition were not maintainable. 7. Advancing his arguments further, learned counsel inviting attention of the Court towards the contents of the subject application dated 25.10.2018, contended that the petitioner has leveled bald allegation of collusion, without pointing out any instance or reason for which an inference much less a finding of collusion between plaintiff and defendant No. 2 can be recorded. He emphasised that the petitioner’s application is bereft of any material or pleading evincing the collusion, and that the collusion is a matter of evidence and the same has to be proved. He emphasised that the petitioner’s application is bereft of any material or pleading evincing the collusion, and that the collusion is a matter of evidence and the same has to be proved. The vague allegation and assertion of collusion made in the application are not enough to oust the defendant No. 2. 8. He argued that provision contained in Order I Rule 3(a) of the Code clearly suggest that all persons may be joined as defendants, if any right to relief in respect of the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly or severally. 9. Learned counsel for the respondent No. 3 submitted that admittedly the respondent No. 3 (defendant No. 2) is erstwhile President of the ‘Sansthan’ who had resigned from his post and that the election held on 24.04.2018 were necessitated only because of his resignation. The cause of action definitely depends upon and arises from the point when he resigned from the post of President. As such he has been rightly impleaded as a party, argued Mr. Thanvi. 10. In support of his case, Mr. Bhansali cited the following judgments:- (i) Anjum Nath vs. British Airways and Others, (2007) 2 ILR (Delhi) 1187. (ii) Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and Others, (1992) AIR (SCW) 846. (iii) The Church of Christ Charitable Trust & Educational Charitable Society vs. M/s Ponniamman Educational Trust, 2012 AIR (SC) 3912. (iv) Basangouda vs. Virupaxgouda and Others, W.P. No. 72892/2012 decided on 20.03.2013 by Karnataka High Court. (v) International Air Transport Association vs. Aziz Fatima Hasnain and Another, (1985) AIR (Delhi) 381. 11. I have heard rival counsels and given my consideration over the material available and arguments advanced. 12. A bare look at the judgments cited by the learned counsel for the petitioner reveals that they relate to general principles governing impleadment and deal with the situation, where plaintiff has not disclosed any cause of action at all, against the concerned defendant or party. 13. Be that as it may, requirement of a person as a defendant or plaintiff has to be determined on the basis of the existing facts and pleadings of the parties. 13. Be that as it may, requirement of a person as a defendant or plaintiff has to be determined on the basis of the existing facts and pleadings of the parties. No straight jacket formula can be provided or applied, when it comes to the issue of necessary and proper party, while deciding an application under Order I Rule 10 of the Code. 14. The judgments cited by Mr. Bhansali are clearly distinguishable from the facts of the present case. It is to be noted that in all the above cases referred by the petitioner, either the plaintiff wanted impleadment or the concerned defendant sought his deletion; in none of these cases, the situation like the case at hand has arisen, where neither the plaintiff nor the concerned defendant has raised any grievance about the impleadment. 15. Adverting to the contention raised by learned counsel for the petitioner that no cause of action has been shown to have accrued against the said defendant No. 2; suffice it to say that a reading of the plaint shows that the plaintiff has asserted that the defendant No. 2 has resigned from the post of President and thereafter the election took place under the supervision of an irregularly appointed ad hoc president. As such the genesis of the dispute lies in the resignation, or the trigger point of the lis is, incidence of defendant No. 2’s resignation. 16. While deciding the question of impleadment/deletion of a party, the Court is required to see whether the concerned defendant is a necessary or proper party or not. Regardless of the fact that any cause of action has accrued against the defendant, the plaintiff can very well implead a person as a defendant. It is not always necessary that a cause of action should exist against a defendant. At times a defendant is required to elicit information. 17. In this regard, the provisions contained in Order I Rule 3 & 10 of the Code are relevant, which are being reproduced hereunder:- “R.3. Who may be joined as defendants - All persons may be jointed in one suit as defendants where:- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transaction is alleged to exist against such persons, whether jointly, severally or in the alternative. Who may be joined as defendants - All persons may be jointed in one suit as defendants where:- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transaction is alleged to exist against such persons, whether jointly, severally or in the alternative. (b) if separate suits were brought against such persons, any common question of law or fact would arise. R.10. Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties - 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (4) Where defendant added, plaint to be amended - Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 18. A bare look at the Order I Rule 3 of the Code shows that all persons may be arrayed as a defendant, if any right or relief claimed by the plaintiff arises out of the same act or acts or transactions, which existed prior to the concerned or impugned cause of action. 19. Sub-rule (b) of Rule 3 of Order I is also required to be borne in mind while deciding the application for deletion of a defendant; which postulates that if a separate suit were to be brought against such person by the plaintiff and it would give rise to common question of law or fact, then such person can be joined as a party. 20. Moving on to provision confined in sub-rule (2) of Rule 10 of Order I, it is pertinent that sub-rule (2) of Rule 10 provides that if it appears to the Court that the name of any party has been improperly joined, such name would be struck out. 21. Upon appraisal of the factual and legal matrix of the case, I feel that presence of defendant No. 2, the erstwhile president of the Society may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. Hence, I hold that defendant No. 2 is a proper party. 22. That apart, the petitioner being a co-defendant had no locus to maintain an application for deletion of defendant No. 2, a codefendant; particularly when the plaintiff or such concerned defendant has not raised any grievance or grudge against his impleadment. 23. Hence, I hold that defendant No. 2 is a proper party. 22. That apart, the petitioner being a co-defendant had no locus to maintain an application for deletion of defendant No. 2, a codefendant; particularly when the plaintiff or such concerned defendant has not raised any grievance or grudge against his impleadment. 23. Notwithstanding the above discussion, I do not find it to be a fit case warranting interference under supervisory jurisdiction of this Court vested under Article 227 of the Constitution, that too at the instance of the petitioner, who is a co-defendant. 24. The writ petition is, thus dismissed. 25. With the dismissal of the writ petition, the Stay Application No. 2050/2019 also stands dismissed.