Sitare Ahmad vs Zeenatun Nisa and Others

D.N. Patel, J.—The present writ petition has been preferred against the order passed by learned Subordinate JudgeVI, Hazaribag, dated 10th May, 2010 below an application preferred by the present Petitioner under Order I Rule 10 of the CPC read with Section 151 of the CPC for joining as a party Defendant in title suit, preferred by the Respondents, bearing Title Suit No. 38 of 2007.

Having heard learned Counsels for both sides and looking to the facts and circumstances of the case, it appears that:

(i) The present Petitioner''s claim, as stated in application under Order I Rule 10 of the CPC read with Section 151 of the Code of Criminal Procedure, in paragraphs 4 and 5 read as under:

That Petitioner living in the portion of building for the last 21 years.

That Petitioner applied before Deputy Commissioner, Hazaribag to transfer the building in question dated 26.12.2007 to the Petitioner.

(ii) It appears from Annexure-1 that the Petitioner is residing at the suit property.

(iii) Looking to Annexure-2, it appears that it is an application, preferred by the Petitioner to the Deputy Commissioner, Hazaribag, for transfer the Khas Mahal property, which is a suit property because the original lessee had already expired and public notice was given by the Deputy Commissioner, Hazaribag and in response to the public notice, an application was preferred by the Petitioner, who is alleging his possession since last 21 years upon the suit property. This application is still pending before the Deputy Commissioner, Hazaribag. Thus, prima facie, it appears that the Petitioner is interested in the suit property.

(iv) It further appears from the impugned order that the trial court has unnecessarily gone into the merits of the claim of the intervener, at the stage of the joining of the party, which is not permissible in the eye of law and which is an error apparent on the face of the record and, hence, the impugned order deserves to be quashed and set aside.

(v) Whenever any application is preferred under Order I Rule 10 of the CPC for joining as a party, the court concerned has to see how, prima facie, the applicant is connected with the suit property and how, prima facie, the applicant will be affected by the possession in the suit. Nothing more than this is required to be gone into by the trial court, much less, into the merits of the claim of the intervener. It ought to be kept in mind by the trial court that the claim of the intervener should be decided at the time of final hearing of the suit, on merits, on the basis of the evidences led during the course of trial.

(vi) Looking to the impugned order, it appears that the trial court has brushed aside the claim of the intervener, on merits. This is not permissible while deciding the application under Order I Rule 10 of the Code of Civil Procedure. These are the errors apparent on the face of the record, committed by the trial court. Hence, I hereby quash and set aside the order passed by learned Subordinate JudgeVI, Hazaribag, dated 10th May, 2010, below an application, under Order I Rule 10 of the CPC read with Section 151 of the Code of Civil Procedure, of the present Petitioner for joining as party Defendant in Title Suit No. 38 of 2007. I hereby allow the application, preferred by the present Petitioner for joining as a party Defendant in Title Suit No. 38 of 2007. Thus, the Petitioner is ordered to be joined as a party Defendant at his own cost.

The writ petition is, hereby, allowed and disposed of.