Uma Dutt vs Jai Dutt

Tarlok Singh Chauhan, J.—This petition, under Article 227 of the Constitution of India is directed against the order passed by the learned Civil Judge (Junior Division), Kasauli, District Solan on 28.2.2013, whereby the application preferred by the petitioners, under order 1 Rule 10 CPC came to be dismissed.

The plaintiffs-respondents filed a suit claiming therein the following relief:-

"It is, therefore, prayed that the decree for permanent prohibitory injunction may kindly be passed in favour of the plaintiff and against the defendant by restraining the defendants from changing the nature, raising any construction or making any waste or damage to the land comprised in Khata/Khatauni No. 39 min/42 Khasra No. 105 measuring 2 Bighas 12 Biswas situated in Mauja Jabecha Khurd, Pargana Lachhrang, Tehsil Kasauli, District Solan, H.P. either by themselves through their agents, servants, assignees, contractor, family members, person or persons whosoever in any manner whatsoever. Further a decree for mandatory injunction may be passed in favour of the plaintiff and against the defendants by directing the defendant to demolish the construction if any raised during the pendency of the suit by maintaining the status quo position which is existing today in the interest of justice."

During the pendency of the suit, the petitioners filed an application for their impleadment in the suit on the allegations that they were necessary and proper parties to the lis. It is contended that plaintiff under the garb of the suit was trying to appropriate the entire property, which was abadi-deh without impleading the actual proprietary body of the village as a party to the suit. It was further alleged that plaintiffs had placed wrong facts before the court. It was then claimed that the petitioners are rightful owners of the suit land, and therefore, in their absence the suit could not be adjudicated and was thus not maintainable.

The respondents/plaintiffs filed reply to the application wherein they denied the allegations as made in the application and clarified that he (plaintiff) had filed the suit against defendants No. 1 to 4 since they had been raising construction in his courtyard illegally and forcibly.

The learned trial court rejected the application by holding that petitioners might be having share in the Abadi-deh land, but no relief had been claimed against them and further no cause of action had arisen in their favour so as to claim their impleadment in the suit. The learned court below has further held that there was no allegation leveled in the application regarding collusion or fraud against the plaintiff and the suit being simpliciter for injunction, the petitioners could not claim their impleadment. The learned counsel for the petitioners has vehemently argued that the order passed by the court below is absolutely illegal and perverse and it has misconstrued, misinterpreted and mis-appreciated the pleadings on record and above all it has misconstrued the provisions of the Code of Civil Procedure, particularly those contained in Order 1 Rule 10 CPC.

I have heard the learned counsel for the parties and gone through the record.

It is settled law that plaintiff is dominus-litis and is not bound to sue every possible adverse claim in the same suit and he may choose to implead only those persons as defendants against whom he wishes to proceed, but the court may at any stage of the suit may direct addition of parties. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 CPC, which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively, while a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. The Addition of a party is generally not a question of initial jurisdiction of the court, but of judicial discretion, which has to be exercised in view of all the facts and circumstances of particular case. The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct addition of a person, whose presence is not necessary for that purpose.

In case the relief claimed by the plaintiff in the main suit is seen then it is established beyond doubt that what has been sought for by him is only that defendants be restrained from changing the nature, raising any construction or making any waste or damage to the suit property. The plaintiff has not claimed any declaratory relief for himself and therefore, the allegations of the petitioners that the plaintiff wants to raise construction over the land in dispute is far fetched.

The learned court below is right in observing that in absence of collusion or fraud the application would not be maintainable because apparently the petitioner could have made a claim only on such grounds in the pending suit. Now, in case the plaintiff had been raising any construction or appropriating the property on to himself then the remedy of the petitioners would be only through an independent suit and not by seeking their impleadment in the present suit.

For all the reasons stated above, I do not find any illegality or material irregularity committed by the learned court below in dismissing the application of the petitioners, wherein they had sought their impleadment in the suit. Accordingly, the present application is dismissed, leaving the parties to bear their own costs.