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2023 DIGILAW 1111 (RAJ)

Nand Kishor S/o Shri Radheshyam Sharma v. Shivji Ram Gurjar S/o Bheruram Gurjar

2023-05-16

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, prayed that record of the case no.1/23 titled as Shivjiram Vs Tehsildar and ors pending before Civil Judge Senior Division Nanva, District Nagour may kindly be called for and after examining the same this Hon’ble Court by an appropriate writ, order or direction quash and set aside the order dated 26.04.2023 (Annx-10) and allowed the application filed by the petitioner under Order 1 Rule 10 dated 25.01.2023 (annx-8). Any other writ, order or direction which this Hon’ble Court thinks fit in the interest of justice may kindly be passed in favour of petitioner.” 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that one Radhey Shyam (son of respondent no.1-Shivji Ram Gurjar) alongwith other persons, instituted a suit, against the petitioner & other persons, under Sections 88, 53 & 188 of the Rajasthan Tenancy Act, 1955, before the Sub Divisional Officer (SDO), Nawa, District Nagaur for partition and injunction, in relation to land (situated in Revenue Village Nawa, District Nagaur) comprising Khasra Nos. 106, 107, and 108 - total admeasuring 2.28 hectares. 2.1. In the aforementioned suit, the respondent no.1 and other persons had claimed, amongst others, that the lands in question were purchased by them, from the respective recorded khatedars thereof, vide registered sale deed dated 04.09.2013. The new khasra nos. 2386/107, 2387/107, 2388/2386, 2389/2386 and 2390/2386 were formulated in respect of the land in question. 2.2. Vide the judgment and decree dated 14.05.2014 passed by the learned SDO, the said suit instituted by the respondent no.1 was decreed. 2.3. The petitioner against the aforesaid judgment and decree dated 14.05.2014 preferred an appeal before the learned Revenue Appellate Authority (RAA), Nagaur. The learned RAA vide the judgment and decree dated 03.09.2021 dismissed the appeal, while holding the judgment and decree passed by the learned SDO. The petitioner thereafter, preferred an appeal against the judgment and decree passed by the learned RAA, before the learned Board of Revenue (BOR) for Rajasthan, Ajmer. The learned BOR vide order dated 27.10.2021, while fixing the next date i.e. 17.12.2021, in the pending appeal, had passed an interim order to the effect of maintaining the status quo with regard to the land in question, till that date. 2.4. The learned BOR vide order dated 27.10.2021, while fixing the next date i.e. 17.12.2021, in the pending appeal, had passed an interim order to the effect of maintaining the status quo with regard to the land in question, till that date. 2.4. During the pendency of aforesaid revenue proceeding, the respondent no.1 filed a suit for permanent injunction before the learned Senior Civil Judge & Additional Chief Judicial Magistrate, Nawa City, Tehsil Nawa, District Nagaur, pertaining to the property in question. 2.5. The petitioner came to know about the aforesaid suit then he filed an impleadment application under Order 1 Rule 10 CPC. The learned Civil Court below, however, vide the impugned order dated 26.04.2023, rejected the said application, while not considering the petitioner, as a necessary party to the said suit. 2.6. Thus, aggrieved by the said order dated 26.04.2023 passed by the learned Court below on the application under Order 1 Rule 10 CPC, the present petition has been preferred claiming the afore-quoted reliefs. 3. Learned counsel for the petitioner submitted that the learned Court below, before passing the impugned order, failed to consider that in the suit filed by the respondent no.1 before the learned Court below, he did not mention about pendency of the appeal preferred by the petitioner before learned BOR, wherein the interim order of status quo was passed on 27.10.2021; further, despite the fact that the suit instituted by the respondent no.1 before the learned Court below was pertaining to the land in question, the respondent no.1 deliberately did not implead the petitioner as party defendant therein, even when, as per law, the petitioner was a necessary party, whose impleadment was necessary for fair and effective adjudication of the suit. 3.1. Learned counsel further submitted that the revenue proceedings before the learned SDO, learned RAA and learned BOR are clearly related to the old khasra no. 106, 107, and 108, and now since the new khasra numbers, as aforementioned, were formulated, therefore, the petitioner being a necessary party in the suit filed by the respondent no.1 before the learned Court below, as per Order 1 Rule 10 CPC, he ought to have been impleaded therein. 3.2. 106, 107, and 108, and now since the new khasra numbers, as aforementioned, were formulated, therefore, the petitioner being a necessary party in the suit filed by the respondent no.1 before the learned Court below, as per Order 1 Rule 10 CPC, he ought to have been impleaded therein. 3.2. Learned counsel also submitted that the rejection of the impleadment application of the petitioner, vide the impugned order, is not sustainable in the eye of law, more particularly, when in absence of his (petitioner’s) impleadment, the final and effective adjudication of the suit is not possible. 3.3. In support of his submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Pankaj Kishor Shah Vs. Naresh Purushotham Khetan & Anr. (Civil Appeal No. 2474 of 2021, decided on 12.07.2021). 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that the respondent no.1 was not a party in appeal pending before learned BOR, and thus, had no knowledge about the said appeal. It was further submitted that the appeal before the learned BOR is pertaining to khasra no. 106, 107, and 108 and not related to the khasra no.2389/2386, and therefore, both the suits pertained to the different subject matters. 4.1. Learned counsel also submitted that the claim of the petitioner is that old khasra numbers were converted into new khasra numbers, but the petitioner seeking impleadment, before the learned Court below, had not produced on record any document to show that the Tehsildar, Nawa had drawn the note dated 04.11.2022 (in relation to disputed khasra no.2389/2386) regarding passing of the interim order of status quo on 27.10.2021, by the learned BOR in the pending appeal; thus, the petitioner had no right to seek impleadment in the case, pertaining to the disputed khasra no.2386/2389, while claiming himself to be the necessary party in the suit before the learned Court below. 4.2. It was also submitted that it is a settled law that in the suit, the plaintiff is Dominus Litis, and thus, unless the concerned Court suo motu directs to join any other person, not party to the suit, for effective decree and/or for proper adjudication, as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendant(s) against the wish of the plaintiff. He thus submitted that the impugned order passed by the learned Court below is justified in law, and thus, the present petition deserves dismissal. 4.3. In support of their submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Sudhamayee Pattnaik & Ors. Vs. Bibhu Prasad Sahoo & Ors. (Civil Appeal No.6370 of 2022, decided on 16.09.2022); and judgment rendered by a Coordinate Bench of this Hon’ble Court, at Jaipur Bench, in the case of Narain Lal Atal Vs. The Addl. District Judge No.1, Jaipur City, Jaipur & Ors (S.B. Civil Writ Petition no.2426 of 2007, decided on 03.12.2013). 5. Heard learned counsel for the parties as well as perused the record of the case along with the judgments cited at the Bar. 6. This Court observe that the petitioner filed an application under Order 1 Rule 10 CPC for being impleaded as party in the suit seeking permanent injunction instituted by the respondent no.1 before the learned Senior Civil Judge & Additional Chief Judicial Magistrate, Nawa City; the said application was however, rejected by the learned Court below vide the impugned order dated 26.04.2023. 7. This Court further observes that the petitioner preferred an appeal before the learned BOR, subject matter whereof was the old khasra nos. 106, 107, and 108; the said appeal, as informed, is still pending. The learned BOR on 27.10.2021 passed the interim order to maintain the status quo with regard to the property in question. 8. At this juncture, it is considered appropriate to reproduce the relevant provision i.e. Order 1 Rule 10 CPC, as hereunder: “ORDER I - Parties to Suits Rule 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. (5) Subject to the provisions of the 1 [Indian Limitation Act, 1877 (XV 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.” 9. This Court also considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of Baluram Vs. P. Chellathangam (2015) 13 SCC 579 , as hereunder: “11. ……..The Appellant was entitled to be impleaded as a party to safeguard his right as beneficiary of the Trust so that the Trustees did not exercise their power of alienation unreasonably. Reliance has been placed on judgment of this Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. 2010 (7) SCC 417 . ……. 14. In Mumbai International Airport (supra) this Court observed: 13. Reliance has been placed on judgment of this Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. 2010 (7) SCC 417 . ……. 14. In Mumbai International Airport (supra) this Court observed: 13. 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 the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: 10. (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. 14. 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 questions 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. 15. 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. 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 dispute 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. xxxxxxxxxxxxxxx 19. Referring to suits for specific performance, this Court in Kasturi (2005) 6 SCC 733 ], held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application Under Order 1 Rule 10 Code of Civil Procedure. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the Defendant vendor will not be a necessary party. xxxxxxxxxxxxxxx 22. Let us consider the scope and ambit of Order 1 Rule 10(2) Code of Civil Procedure regarding striking out or adding parties. xxxxxxxxxxxxxxx 22. Let us consider the scope and ambit of Order 1 Rule 10(2) Code of Civil Procedure regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the Plaintiff or the Defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a Plaintiff or as a Defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion Under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.” 10. This Court further observes that in the given factual matrix, the present petitioner clearly falls under the definition of necessary party, as per Order 1 Rule 10 CPC, because the old khasra numbers (subject matter of the appeal before the learned BOR) were converted into new khasra numbers (subject matter of suit before the learned Court below) in respect of the same property in question, and thus, for proper adjudication of the suit before the learned Court below, the petitioner ought to be impleaded as a necessary party therein. Such observation is being made while also keeping into due consideration the fact that the interim order of status quo was passed by the learned BOR, on 27.10.2021, in the pending appeal, subject matter whereof were the old khasras, in respect of the property in question. 11. Such observation is being made while also keeping into due consideration the fact that the interim order of status quo was passed by the learned BOR, on 27.10.2021, in the pending appeal, subject matter whereof were the old khasras, in respect of the property in question. 11. This Court further observes that in Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. 2010 (7) SCC 417 , reference whereof has been made in the judgment rendered in Baluram (Supra), the Hon’ble Apex Court has held that, “In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.” Therefore, in light of such observation of the Hon’ble Apex Court, it was necessary to implead the present petitioner as party in the suit filed by respondent no.1 herein, before the learned Court below, for its final adjudication in a fair and effective manner. 12. Thus, in view of the above, and in light of the aforementioned precedential backdrop as also looking into the factual matrix of the present case, this Court deems it appropriate to allow the present petition. 13. Consequently, the present petition is allowed and while quashing and setting aside the impugned order dated 26.04.2023 passed by the learned Court below, the petitioner is ordered to be impleaded as party defendant in the suit filed by the respondent no.1 before the learned Court below. All pending applications stand disposed of.