Research › Search › Judgment

Uttarakhand High Court · body

2020 DIGILAW 274 (UTT)

Gurnait Singh v. Ashok Kumar

2020-07-08

MANOJ KUMAR TIWARI

body2020
JUDGMENT Manoj Kumar Tiwari, J. - By means of this Writ Petition under Article 227 of Constitution of India, petitioner has challenged the order dated 15.11.2018 passed by learned 1st Additional District Judge, Udham Singh Nagar in Civil Appeal No. 6 of 2018. By the impugned order, petitioner's application under Order 1 Rule 10 of C.P.C., seeking his impleadment in the Appeal filed by respondent Nos. 2 & 3 against the judgment & decree rendered by learned trial Court in favour of respondent No. 1 (Ashok Kumar), was rejected. 2. There is a property in Ward No. 17, Rudrapur, Tehsil Kichha, District Udham Singh Nagar, namely, R.R. Quarter Nos. 46 & 47. The said property has been subject matter of litigation. Suit No. 40 of 2002 was filed by one Mrs. Krishnawanti, mother of respondent nos. 1, 6 & 7, seeking permanent injunction against respondent no. 5. The said suit was dismissed by learned trial Court vide judgment & order dated 27.05.2005. Against the said judgment, Mrs. Krishnawanti filed Appeal No. 72 of 2006. During the pendency of the Appeal, Mrs. Krishnawanti passed away, consequently, her husband i.e. Mr. Hemraj & two sons, namely, Mr. Rajendra Kumar Chhabra and Mr. Satish Chandra Chhabra (respondent nos. 6 & 7 herein) were substituted in her place in the said Appeal, which was ultimately dismissed by First Appellate Court. The judgment rendered by First Appellate Court in the said Appeal attained finality in the absence of challenge by any of the legal heirs of Mrs. Krishnawanti. Thereafter, another Civil Suit, bearing Civil Suit No. 110 of 2007, was filed by respondent nos. 6 & 7 claiming title over the aforesaid property, in which Mr. Shyam Sunder (respondent no. 5 herein) and one Mr. R.B. Lal Saxena were impleaded as defendants. The said suit was dismissed vide judgment & order dated 19.08.2008, by holding that the suit is barred by res-judicata. The judgment rendered by learned trial Court in the said suit was never challenged before any higher forum, thus, attained finality. Thereafter, Mr. Ashok Kumar (respondent no. 1 herein) filed a suit for cancellation of sale deed and permanent injunction, in respect of aforesaid property, which was registered as Original Suit No. 133 of 2010. Respondent nos. 2 to 7 were impleaded as defendants in the said suit. The said suit filed by Mr. Thereafter, Mr. Ashok Kumar (respondent no. 1 herein) filed a suit for cancellation of sale deed and permanent injunction, in respect of aforesaid property, which was registered as Original Suit No. 133 of 2010. Respondent nos. 2 to 7 were impleaded as defendants in the said suit. The said suit filed by Mr. Ashok Kumar was decreed by learned trial Court vide judgment dated 31.01.2018 and it was held that plaintiff is the owner of the suit property. Respondent nos. 2 and 3, namely, Mr. Sanjay Grover and Smt. Sarita Grover challenged the said judgment & decree by filing regular Civil Appeal, which was registered as Civil Appeal No. 6 of 2018. 3. Petitioner filed an application under Order 1 Rule 10 of C.P.C., seeking his impleadment in the said Appeal, on the ground that petitioner's interest is vitally involved in the suit property, namely, R.R. Quarter Nos. 46 & 47 and petitioner has been impleaded as defendant in another suit filed by Mr. Sanjay Grover and Smt. Sarita Grover (respondent Nos. 2 & 3 herein), which is pending before learned Civil Judge (Senior Division), Rudrapur and is registered as Civil Suit No. 59 of 2013 and learned trial Court has passed an order directing the parties to maintain status quo. 4. Learned counsel for the petitioner submits that petitioner, who had sought impleadment in Appeal, had purchased the suit property, namely, R.R. Quarter Nos. 46 & 47, by a registered sale deed from one Mr. Devki Nandan and Mr. Devki Nandan had purchased the said property from the original owner, namely, Mr. R.B. Lal Saxena by a registered sale deed. Thus, according to him, petitioner's interest was vitally involved in the subject property, and he had every right to be heard, therefore, learned Court below erred in rejecting his impleadment application. He further submits that learned Appellate Court erred in rejecting petitioner's application and the reasoning given for rejecting petitioner's impleadment application is also fallacious. 5. Per contra, Mr. G.S. Negi and Mr. V.K. Guglani, learned counsel appearing for respondent no. 1 and respondent nos. 2 & 3 respectively, submit that since the S.C.C. Suit filed by Mr. R.B. Lal Saxena, seeking eviction of a sitting tenant in the aforesaid property, was dismissed by learned Small Causes Court and the revision filed against the judgment/decree passed by Small Causes Court too was dismissed and it was held that Mr. 1 and respondent nos. 2 & 3 respectively, submit that since the S.C.C. Suit filed by Mr. R.B. Lal Saxena, seeking eviction of a sitting tenant in the aforesaid property, was dismissed by learned Small Causes Court and the revision filed against the judgment/decree passed by Small Causes Court too was dismissed and it was held that Mr. R.B. Lal Saxena was not the owner of the aforesaid property, therefore, learned Appellate Court was justified in rejecting petitioner's application for impleadment. 6. A bare perusal of the impugned order dated 15.11.2018 reveals that the sole ground for rejecting petitioner's impleadment application is that he has sought impleadment on the basis of a sale deed, which stands cancelled by learned trial Court. 7. Learned counsel for the parties are unanimous on the point that this reasoning given by learned Court below for rejecting petitioner's application is factually incorrect, as the sale deed, on the basis of which petitioner had staked his claim, has not been cancelled so far; although, the said sale deed is subject matter of challenge in Civil Suit No. 59 of 2013. 8. Since R.R. Quarter Nos. 46 & 47 are subject matter of a number of Civil Suits and Mr. R.B. Lal Saxena, predecessor-in-interest of the petitioner, was party in those suits, therefore, petitioner has vital interest in the said property, which is subject matter of Civil Appeal No. 06 of 2018. This aspect has, however, been overlooked by learned trial Court while rejecting petitioner's application. 9. For the aforesaid reasons, the writ petition is allowed. Impugned order dated 15.11.2018 is set aside and the impleadment application filed by the petitioner stands allowed. 10. Learned counsel for the respondent nos. 2 & 3 submits that, in Original Suit No. 110 of 2007, learned trial Court had decided the issue of res-judicata between the parties, therefore, learned Court below be directed to consider this aspect of the matter before proceeding any further in the matter. 11. This Court is not inclined to issue any such direction to learned Court below, however, parties shall be at liberty to raise all contentions before learned Court below. 12. 11. This Court is not inclined to issue any such direction to learned Court below, however, parties shall be at liberty to raise all contentions before learned Court below. 12. Since Suit No.133 of 2010 was filed 10 years ago, therefore, this Court hopes & expects that learned Court below shall decide the matter as early as possible, preferably within a period of 9 months from the date of production of certified copy of this order.