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2021 DIGILAW 851 (RAJ)

Bagichi Gulabdas Ji v. Ratan Lal

2021-04-13

CHANDRA KUMAR SONGARA

body2021
ORDER 1. Instant writ petition under Article 227 of the Constitution of India has been filed on behalf of the petitioner - Nagar Parishad, Sikar through its Commissioner challenging the impugned order dated 15.01.2021 passed by the Court of Additional District Judge, No.2, Sikar, in Civil Suit No.777/2014, titled as Bagichi Gulabdasji Vs. Ratanlal & Others, whereby the application under Order 1 Rule 10 of C.P.C. filed by the petitioner, had been dismissed. 2. Facts of the present case, in brief, are that the plaintiff-respondent No.1 instituted a suit for cancellation of sale-deed and permanent injunction against the defendants-respondents No.2 to 11, herein (Annexure-1). The petitioner - Nagar Parishad, Sikar filed an application under Order 1 Rule 10 of C.P.C. for impleading it as defendant No.11 in the suit on 02.12.2020 (Annexure-3), which was rejected vide impugned order dated 15.01.2021 (Annexure-5) by the learned trial Court. Hence, this writ petition. 3. Learned counsel appearing for the petitioner- Nagar Parishad, Sikar has submitted that the learned trial Court has committed illegality in dismissing the application filed by the petitioner. Counsel has further submitted that the plaintiff-respondent No.1 in Para Nos.1 and 2 of the plaint has nowhere disclosed the title over the land, in question and mere possession over the land will not create any legal right or title over the land. The entire land consisting Khasra No.401 in Rakba 1813 vests in the State Government, as per Jamabandi of Samvat, 1998. Counsel has contended that the petitioner in Para 2 of the application filed under Order 1 Rule 10 of C.P.C. gave details of the land, which vests in the Government, after the Municipal Council came into existence, thus, the entire land vests in the Municipal Council, Sikar. Counsel has further contended that the plaintiff-respondent No.1 has no legal right or title over the entire land and his possession over the land is only as an 'encroacher'. Counsel has argued that the necessary party ought to be joined to the suit and in whose absence, no effective decree can be passed by the Court. Counsel has further argued that in the present case, the petitioner- Nagar Parishad is a necessary party, as the entire land vests in the Nagar Parishad and the plaintiff is a trespasser/ encroacher, as no legal right or title over the land has been disclosed in the plaint. Counsel has further argued that in the present case, the petitioner- Nagar Parishad is a necessary party, as the entire land vests in the Nagar Parishad and the plaintiff is a trespasser/ encroacher, as no legal right or title over the land has been disclosed in the plaint. Counsel has pleaded that mere delay in filing the application for impleading it as a party is no ground to dismiss the application, as in view of Order 1 Rule 10 (2) of C.P.C, the Court may at any stage of the proceedings, if application is filed or even suo-motu, can implead the party without any application. Lastly, counsel has prayed that the application filed by the petitioner may be allowed and the impugned order may be set aside. 4. During the course of arguments, learned counsel appearing for the petitioner, has placed reliance upon the following judgments :- 1. Madan Lal Khuteta Vs. Badri Narayan, reported in A.I.R. 1988 (Rajasthan), 61 2. Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and Others, reported in (2010) 7 S.C.C. 417 . 3. Nijamuddin Vs. Nagar Nigam, Jaipur through Chief Executive Officer, reported in 2018 (2) W.L.C. (Raj.) UC 783. 5. Learned counsel appearing for the plaintiff-respondent No.1 has opposed the submissions made by learned counsel appearing for the petitioner and submitted that the petitioner is neither necessary nor proper party in the present case. Counsel has further submitted that earlier the same Court had rejected the application of the plaintiff-respondent No.1 in the same suit under Order 1 Rule 10 of C.P.C. for impleading the Nagar Paris had as defendant vide order dated 04.02.2019. 6. During the course of arguments, learned counsel appearing for the respondents, has placed reliance upon the following judgments:- 1. Kishan Sharma & Others Vs. Gram Panchayat & Others, reported in R.L.W. 2012 (2) Raj. 1257. 2. Hari Singh & Others Vs. Raju Singh & Others, reported in 2015 (2) WLN 526 (Raj.) 3. Ambeshwar Grih Nirman Sahakari Samiti Limited Vs. Babu Lal & Others, reported in R.L.W. 2012 (4) Raj. 2984. 4. Deepika Paliwal Vs. Civil Judge (Jr.Div.) & Others, reported in 2017 (3) CDR 1113 (Raj.). 5. Shraddhanand Mahajan & Others Vs. Pushpa Sharma & Others, reported in 2018 (4) RLW 3549 (Raj.). 7. Ambeshwar Grih Nirman Sahakari Samiti Limited Vs. Babu Lal & Others, reported in R.L.W. 2012 (4) Raj. 2984. 4. Deepika Paliwal Vs. Civil Judge (Jr.Div.) & Others, reported in 2017 (3) CDR 1113 (Raj.). 5. Shraddhanand Mahajan & Others Vs. Pushpa Sharma & Others, reported in 2018 (4) RLW 3549 (Raj.). 7. Heard learned counsel appearing for the parties and perused the impugned order and the material made available on record. 8. The second application is no bar under the principles of res-judicata for its consideration, but the same can be considered only when the petitioner shows that such consideration is necessary in view of the new facts, situation and circumstances, which have taken place subsequently. 9. In the case of Madan Lal Khuteta (supra), a Co-ordinate Bench of this Court, observed as under :- "There is no bar under the principles of res-judicata for its consideration, but the same can be considered only when the petitioner shows that such consideration is necessary in view of the new facts, situation and circumstances, which have taken place subsequently." 10. A bare perusal of the impugned order reveals that earlier on 24.09.2018 the plaintiff himself had filed an application for impleading Nagar Parishad, Sikar as defendant in the civil suit, which was rejected vide order dated 04.02.2019. However, the petitioner- Nagar Parishad, Sikar is already a non-applicant No.11 in Temporary Injunction Application (Civil Miscellaneous Application No.75/2020) of Civil Suit No.777/2014. Hence, the petitioner's application is not barred under the principles of res-judicate for its consideration. 11. In Para Nos.1 & 2 of the plaint, the plaintiff-respondent No.1 has nowhere disclosed the title over the land, in question. The petitioner /applicant in Para No.2 of the application filed under Order 1 Rule 10 of C.P.C. gave details of the land, which vests in the Government, after Municipal Council came into existence, thus, the entire land vests in the Municipal Council, Sikar. It has been stated that the plaintiff has no legal right or title over the entire land and the possession over the land is only as an 'encroacher'. However, the petitioner is already a non-applicant No.11 in temporary injunction application of Civil Suit No.777/2014. Hence, the petitioner is necessary party, who ought to have been impleaded as party to the suit and in whose absence, no effective decree could be passed. 12. However, the petitioner is already a non-applicant No.11 in temporary injunction application of Civil Suit No.777/2014. Hence, the petitioner is necessary party, who ought to have been impleaded as party to the suit and in whose absence, no effective decree could be passed. 12. Hon'ble Apex Court in the case of Mumbai International Airport Private Limited (supra), observed as under :- "15. 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." 13. A Co-ordinate Bench of this Court in the case of Nijamuddin (supra), observed as under :- "5...........the trial court has allowed the applicant's application under Order 1 Rule 10 CPC and its impleadment as defendant for the reason that from the documents annexed with the application, prima-facie it transpired that the plaintiff had encroached on government land outside the applicant's institution and due to the encroachment aforesaid, the applicant's rights were adversely effected as plaintiff (3 of 5) [CW-20011/2018] was causing obstruction in access to the applicant's institution. In this view of the matter, the trial court was of the view that the applicant was entitled to be impleaded as a party-defendant in the plaintiff's suit to enable it effectually and completely facilitate the settlement and determination of the question involved therein. 7................the applicant definitely had an interest in the outcome of the plaintiff's suit for injunction. The trial court had ample discretion to implead it as a party in the suit. That discretion in the facts of the case cannot be held to be perverse, capricious or leading to the plaintiff's manifest injustice. The trigger for invoking the court's supervisory jurisdiction under Article 227 of the Constitution of India is thus wholly absent." 14. It further reveals from perusal of the impugned order that the suit has been pending before the trial Court since 2007 and at the stage of final arguments from 06.03.2020. The trigger for invoking the court's supervisory jurisdiction under Article 227 of the Constitution of India is thus wholly absent." 14. It further reveals from perusal of the impugned order that the suit has been pending before the trial Court since 2007 and at the stage of final arguments from 06.03.2020. However, the petitioner-Nagar Parishad, Sikar, which is already a non-applicant No.11 in Temporary Injunction Application (Civil Miscellaneous No.75/2020) of Civil Suit No.774/2014. Therefore, mere delay in filing the application for impleading party is no ground to dismiss the application, as in view of Order 1 Rule 10 of C.P.C., the Court may, at any stage of the proceedings, either upon or without the application is filed implead it as a party in the suit. 15. In view of above, the contention of learned counsel appearing for the plaintiff-respondent that the petitioner is neither necessary nor proper party in the suit, has no force. 16. Judgments relied upon by learned counsel appearing for the plaintiff-respondent No.1 fail to advance the arguments of learned counsel appearing for the plaintiff-respondent No.1, as facts of the present case are based on different footing. 17. In view of above, this Court is of the view that the learned trial Court has committed an error in passing the impugned order dated 15.01.2021. Therefore, the impugned order is set aside and the application (Annexure-3) is allowed. 18. Accordingly, the writ petition stands allowed. 19. Pending applications, if any, also stand disposed of.