Asha Rani vs Laljit and Another

S.D. Agarwala, C.J.—Heard. This is a revision directed against the order dated March 5, 1991 passed by Sub Judge III Class, Ludhiana, rejecting the application moved by the Plaintiff/revisionist under Order 1 Rule 10 read with Order 6 Rule 17 of the CPC (for short, ''the Code'') which was filed on August 31, 1990. The Plaintiff/revisionist had filed a suit for declaration and for mandatory injunction and also for possession in respect of the land in dispute. The suit originally was filed against Laljit and Tikan Kumar. By means of the present application under Order 1 Rule 10 read with Order 6 Rule 17 of the Code, the Plaintiff/revisionist wanted to implead Mukesh Kumar as Defendant No. 3 and an amendment in the plaint.

The trial Court dismissed the application merely on the ground that the Plaintiff/revisionist had not filed any other document to prove the construction made by Mukesh Kumar. This was wholly an irrelevant consideration. While disposing of an application under Order 1 Rule 10 of the Code for impleading a person as a party, the question which the trial Court was called upon to adjudicate was whether Mukesh Kumar was a necessary or proper party in the suit in order to finally adjudicate upon the rights of parties or not?

In reply to application filed by the Plaintiff/revisionist for an ad interim injunction in the suit, in paragraph No. 2, the Defendants No. 1 and 2 had categorically averred that plot No. 7 is owned by Mukesh Kumar brother of Defendants. It was further averred that Defendants had raised construction over plots No. 3 and 7 jointly with their brother Mukesh Kumar.

From the facts on record, it was, therefore, clear that the case of the Defendants was that they were raising construction over plots No. 3 and 7 jointly with their brother Mukesh Kumar. Since the Plaintiff/revisionist wanted a relief of injunction and declaration in respect of plot No. 2 which was adjoining plots Nos. 3 and 7, Mukesh Kumar, who was also making joint construction with Defendants No. 1 and 2, was a proper and necessary party in the suit. The view taken by the trial Court, in my view, is wholly erroneous in law, Mukesh Kumar was a necessary party to the impleaded as a Defendant in the suit. In the circumstances, the trial Court should have also allowed the application under Order 6 Rule 17 of the Code.

Learned Counsel for the Respondent had urged that the reply to the application under Order 39 Rules 1 and 2 of the Code was filed as bar back as April 19, 1989, and this application under Order 1 Rule 10 of the Code was filed on August 31, 1990, In my view, this submission has no substance. Law does not prescribe any bar or limitation for filing an application under Order 1 Rule 10 and under Order 6 Rule 17 of the Code. The only question to be considered is whether the application is belated. In the instant case, it is not disputed that only the issues have been framed and the parties have not yet led any evidence. In the circumstances it cannot be said that the application is belated.

For the foregoing reasons, I allow the revision; set aside the impugned order and allow the application under Order 1 Rule 10 and Order 6 Rule 17 of the Code. The interim order of this Court dated March 13,1992 regarding the stay of further proceedings is hereby vacated.

The trial Court is directed to dispose of the suit as expeditiously as possible.