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Judgment
Heard counsel for the parties.
Petitioner herein is Plaintiff No. 2 amongst five plaintiffs who instituted Title
Suit No. 265/2008 for a declaration that the lands described in Item No. (i) and (ii)
to the Schedule of plaint are part and parcel of public path / road / passage / Gali of
the locality Panchmandir Gali for use and enjoyment of public at large of the
locality. They sought temporary injunction upon the defendants, restraining them
from obstructing in any manner the road and also for finally granting permanent
injunction on adjudication. They also sought mandatory injunction upon the
defendants to demolish and remove construction and structures over the road and it
be made free from obstruction. Consequential decree with cost was prayed for
accordingly.
The suit proceeded thereafter on appearance of the parties. Certain
defendants Kedar Nath Burnwal and others approached this Court in WPC No.
7965/2011 seeking quashing of order dated 30.08.2011 passed by the Learned Sub
Judge-V, Giridih in Title Suit No. 265/2008, whereby their application for recall of
the order of injunction in view of the report of Pleader Commissioner, appointed as
per the direction of this Court in WPC No. 3779/2010, have been rejected. The
Learned Single Judge took note of the submission of the learned counsel for the then
petitioners that the Trial Court may itself be directed to dispose of the suit
expeditiously as the matter is at the evidence stage. Writ petition was disposed of by
order dated 31.01.2013 directing the Learned Trial Court to make endeavour for
expeditious disposal of the suit, preferably within a period of five months from the
date of the order. Parties were directed to cooperate in the proceedings before the
Court below and not take unnecessary adjournment in the matter. The matter
progressed thereafter. However, in between, the Government Pleader made a prayer
for impleadment of the Deputy Commissioner, Giridih through a petition dated
18.07.2013. That prayer was declined by order dated 06.08.2013 by the Learned
Trial Court, which has remained unchallenged. The present petitioners thereafter
made a prayer for impleadment of certain persons as defendant nos. 5 to 9 under
Order 1 Rule 10(2) of Civil Procedure Code on 11.12.2013. On being unsuccessful
in seeking impleadment of new parties in the suit, petitioner approached this Court
in WPC No. 296/2014. They however did not press their challenge to the rejection
of the application made on behalf of Government Pleader for impleadment of
Deputy Commissioner, Giridih contained in order dated 06.08.2013 passed by the
Learned Trial Court. Learned Single Judge by order dated 18.07.2014 passed in
WPC No. 2962014, allowed their prayer, so far as impleadment of new private
parties were concerned, but the challenge to the order dated 06.08.2013 was not
pressed. Only one plaintiff i.e. present petitioner had preferred WPC No. 296/2014
and thereafter Civil Review No. 72/2015 seeking to press the challenge to the order
dated 06.08.2013 passed in Title Suit No. 265/2008 for impleadment of Deputy
Commissioner, Giridih. The Learned Single Judge by order dated 03.09.2015
(Annexure-5 to the supplementary affidavit dated 06.03.2017), did not find any
grounds to review the order dated 18.07.2014 passed in WPC No. 296/2014.
However, the review application was disposed of giving liberty to the petitioner to
file a fresh writ application. The order dated 06.08.2013 however remained
unchallenged thereafter. It has neither been challenged in the present writ
application.
Petitioner''s application for impleadment of Deputy Commissioner, Giridih
dated 25.11.2014 has been declined by the impugned order dated 16.02.2015 passed
by the Learned Trial Court. The Learned Trial Court has taken note of the
background facts also, noticed herein-above. It has also referred to the rejection of
the application for impleadment of Deputy Commissioner, Giridih moved by the
Government Pleader earlier under Order 1 Rule 10(2) of Civil Procedure Code. The
Court was proceeding with the trial under bounden obligation to conclude it in view
of orders passed in WPC No. 7695/2011 within a time frame.
It would not be out of place to mention that the present petitioner had also
preferred another writ petition WPC No. 3803/2013 seeking quashing of the order
dated 13.06.2013 passed by the Learned Trial Court whereunder, petition to recall
the order dated 11.06.2013 by which the evidence of plaintiffs have been closed, had
been rejected. It however appears from perusal of the impugned order that order of
closure of the evidence of plaintiffs was recalled and the case is at the stage of
production of evidence of plaintiffs, as per the impugned order and also as per order
dated 05.01.2017 of the Learned Trial Court (Annexure-2 to the I.A. No. 633/2017).
Plaintiffs evidence is still going on. The said writ petition WPC No. 3803/2013 was
therefore allowed to be withdrawn by order dated 27.02.2017.
Learned counsel for the petitioner, in the aforesaid background facts, noticed
herein-above in some details, submits that the Learned Trial Court however has not
considered the merits of the plea taken by the petitioner herein for impleadment of
the Deputy Commissioner, Giridih as a necessary party in the suit. The rejection of
the prayer for impleadment of Deputy Commissioner, Giridih by earlier order dated
06.08.2013, was guided by the consideration that it had been moved after
considerable delay. Since the issue involved is in relation to the road, plaintiff has
considered it proper to seek impleadment of Deputy Commissioner, Giridih as a
necessary party. This aspect has not been properly dealt in the impugned order.
Therefore, it requires interference.
Counsel for the private Respondents have opposed the prayer. It is submitted
that repeated journeys to this Court mostly on behalf of the plaintiff, do indicate that
there is tendency to delay the adjudication of the matter despite specific observation
made by this Court in WPC No. 7695/2011. Learned counsel submits that Learned
Trial Court did not find any overwhelming reason to allow such impleadment at the
advance stage of trial. Therefore, there is no infirmity in the impugned order.
Considered the submissions of the counsel for the parties and relevant
material facts noted herein-above. I have also gone through the impugned order.
Sequence of facts, narrated herein-above, obviously do not dispel the impression
that the plaintiffs being fully conscious of their cause of action and relief that they
sought in the suit instituted in 2008, have moved an application for impleadment of
Deputy Commissioner, Giridih at an advance stage of trial, though they themselves
had sought impleadment of certain new private parties successfully by virtue of
order passed by the Learned Single Judge of this Court in WPC No. 296/2014.
Learned Trial Court was in seisin of the application for impleadment of Deputy
Commissioner, Giridih at the behest of the Deputy Commissioner himself through
Government Pleader which was comprehensively declined by order dated
06.08.2013, which has remain unchallenged by any of the parties. Despite such
order of rejection being made a subject matter of challenge in WPC No. 296/2014
by the petitioner himself, for strange reasons he failed to press such a prayer. The
civil review petition preferred thereafter by him also failed on that count. Though
liberty was granted by the Review Court to assail the said order in a fresh writ
petition, but for reasons unknown, the writ petitioner has not assailed it even in the
present matter. The approach of the Learned Trial Court, in those circumstances,
cannot be faulted or said to be suffering from errors of jurisdiction. There cannot be
any infirmity on those count in the impugned order. This Court is not persuaded by
the submission advanced by the learned counsel for the petitioner.
Provisions of Order 1 Rule 10 is quoted hereunder:
"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 [ 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."
It is clear from perusal thereof that it is within the discretion of the Court 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, direct a party to be
impleaded 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. The Learned Trial Court has not found any good reasons till
now on the application of the parties for allowing such an impleadment. However,
rejection of such application does not denude the Learned Trial Court from directing
impleadment of any party for effectually and substantially adjudicating the issues
involved at any stage of trial if it considers it necessary. Therefore, though this Court
is not inclined to interfere in the impugned order, but discretion is left with the Trial
Court to exercise the power under Order 1 Rule 10(2) of Civil Procedure Code, as
may be deemed fit and proper, at any stage of trial. It goes without saying that the
Learned Trial Court is already under bounden obligation to make endeavour to
dispose of the suit itself as expeditiously as possible and within a time frame.
Writ petition is accordingly disposed of with the aforesaid observations.