Raj Kumar vs Manoj Kumar and Others

Ram Chand Gupta, J.

C.M. Nos. 11177-78 of 2011

Requests for placing on record Annexures P1 to P4.

The same are taken on record subject to all just exceptions.

Both the applications stand disposed of accordingly.

Civil Revision No. 2770 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order Annexure P5, vide which application, Annexure P2, filed by Petitioner-Defendant for dismissal of the suit has been declined, whereas application Annexure P3, filed by Respondent No. 1-Manoj Kumar for substituting him as a Plaintiff in place of his father-Om Parkash has been allowed.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that a suit for permanent injunction restraining present Petitioner-Defendant and pro forma Respondents-Defendants from dispossessing Om Parkash-Plaintiff and from raising any construction, or changing the nature of the property in dispute was filed, which was contested by the present Petitioner-Defendant and other Respondents-Defendants. During pendency of the suit, the land in dispute was transferred by Om Parkash-Plaintiff in favour of his son Manoj Kumar by relinquishing his right in the property. He suffered a decree dated 6.5.2010 in favour of his son, passed by Permanent and Continuous Lok Adalat (Samjhauta Sadan), Karnal. An application was filed by present Petitioner-Defendant that as Om Parkash-Plaintiff has no more right in the property in dispute as he has transferred his right in the property in dispute in favour of his son, hence he is having also no right to continue the suit and the same be dismissed.

On the other hand, an application under Order 1, Rule 10 read with Section 151 of the CPC has been filed by Manoj Kumar, son of Om Parkash, the original Plaintiff, for substituting him as a Plaintiff on the plea that during the pendency of the suit, the property has been transferred to him by his father, as he relinquished his right in the property and, hence, he is having right to pursue the said suit.

Learned trial Court dismissed the application filed by Petitioner-Defendant for dismissing the suit and, however, allowed the application of Respondent No. 1-Manoj Kumar for substituting him as a Plaintiff in place of his father, Om Parkash, by observing as under:

Further in Subh Ram v. Nitya Nand and Ors. 1990 CCC 206, our own High Court held that in case applicant purchased all rights in the disputed land from the Plaintiff he was a necessary party or in any case a proper party and, therefore, was entitled to be impleaded as a Plaintiff.

In the present case, the applicant is the real son of the Plaintiff Om Parkash son of Paras Ram and thus had stepped into the shoes of his father. All rights in the disputed property had devolved upon him vide a decree/award passed by Permanent Lok Adalat and thus the applicant was a necessary party. Accordingly the application for dismissal of the suit stands dismissed whereas application under Order 1, Rule 10 read with Section 151 CPC filed by applicant Manoj Kumar son of Om Parkash stands allowed.

It has been contended by learned Counsel for the Petitioner that as it is a suit for permanent injunction, Respondent No. 1 is having no right to continue the suit as cause of action was personal to his father, Om Parkash, who is no more having right in the property in dispute.

However, Respondent No. 1-Manoj Kumar has stepped into the shoes of his father. There is no dispute that during the pendency of present suit, rights in the land in dispute has been transferred by Om Parkash-Plaintiff in favour of his son-Manoj Kumar. Therefore, he is having right to pursue the suit and hence is a necessary party, to be impleaded in the suit. There is no force in the argument of learned Counsel for the Petitioner-Defendant that suit is liable to be dismissed.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law has been well settled by Hon''ble Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

There is no merit in the present revision petition. The same is hereby dismissed.