Lajpat Rai Sohal vs Krishana Sood and Others

V.K. Ahuja, J.—Present petition has been filed by the Petitioner under Article 227 of the Constitution of India and Section 115 CPC against the order passed by the Learned District Judge (Forest), Shimla, dated 14.3.2011, dismissing the application under Order 1 Rule 10 Code of Civil Procedure

A notice of the petition was issued to the Respondents, who filed their reply. No rejoinder sought to be filed.

I have heard the Learned Counsel for the parties and have gone through the record of the case.

The Learned Counsel for the Petitioner, to substantiate his case that State of H.P. is a necessary party and the application under Order 1 Rule 10 CPC deserves to be allowed has relied upon the two decisions. The decision in Rajiv Goel v. Sohan Lal Khosla and Anr. 2010 (2) CCC 334, shows that while considering the provisions of Order 1 Rule 10 Code of Civil Procedure, it was observed that if a person is likely to be affected by the result of the suit, he becomes a proper party and should be allowed to be added as a party to the suit. An application had been filed by the Petitioner under Order 1 Rule 10 CPC for impleading him as a party Defendant on the ground that the Plaintiff was alleging the public street to be a private street and the suit was for injunction against the Municipal Council. It is on the facts of that case that it was observed that the Petitioner was entitled to be impleaded as a party in the suit.

Another decision relied upon by the Learned Counsel for the Petitioner is not relevant since the suit was filed for specific performance and in that connection, it was observed by their Lordships that legal representatives, when impleaded as a party are entitled to file additional written statement to take up the pleas available to them. It was also observed that the third party, if shows any title or interest in the property in dispute, the said party can be impleaded as a party in the suit.

Both the above decisions are based on the facts of those cases and, therefore, they do not substantiate the case of the Petitioner.

Facts of the case are that a suit for permanent injunction was filed by the Respondents as Plaintiffs as against the present Petitioner, who was impleaded as a Defendant. The suit was decreed as against the Defendant and an appeal was preferred by the Defendant and during the pendency of the appeal, an application under Order 1 Rule 10 CPC was filed by the Petitioner/Defendant for impleading the State of H.P. and the Settlement Officer as party to the suit and the appeal. The facts of the case are very much clear that the suit was filed by the Plaintiffs for injunction and not for declaration where the person who is recorded as owner i.e. the State of H.P. may be considered as proper/necessary party. The present application has been filed at the appellate stage when the suit had already been decided by the Learned trial Court. A perusal of the judgment passed by the Learned Civil Jude (Senior Division), Court No. 1, Shimla, dated 15.9.2008, shows that an objection was taken that the suit is bad for non-joinder of necessary parties and issue No. 3 was also framed in that regard. Onus to prove the said issue was upon the Defendant and the Learned trial Court recorded findings under that issue as against the Defendant/Petitioner. These findings are subjudice before the Learned Appellate Court and it is yet to be decided by the said Court as to whether the findings under issue No. 3 as against the Petitioner/Defendant have been correctly recorded or not. In case the Learned Appellate Court comes to the conclusion that the State of H.P./Settlement Officer are necessary parties to the suit and the suit cannot proceed in their absence, it is for the said Court to decide the question and thereafter implead the State of H.P. and Settlement Officer as a party. At this stage it cannot be said that the application deserves to be allowed, when the appeal is pending before the Learned Appellate Court.

In view of the above discussion, the impugned order passed by the Learned Appellate Court does not call for an interference by this Court. Therefore, the present petition deserves to be dismissed and the same is dismissed accordingly. The parties, through their Counsel, are directed to appear before the Learned Appellate Court on 19.9.2011. The Registry is directed to send the records of the case alongwith a copy of this order to the court concerned so as to reach well before the date fixed.

The petition stands disposed of accordingly, so also the pending application(s), if any.