Monika Kumari And Others vs Sanjeev Kumar And Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.376 of 2023 a/w CMPMO No.377, 378 & 380 of 2023 .

Date of Decision: 5.10.2023 _______________________________________________________

1. CMPMO No.376 of 2023 Monika Kumari and others .......Petitioners Versus Sanjeev Kumar and others ... Respondents _____________________________________________________

2. CMPMO No.377 of 2023 Monika Kumari and others .......Petitioners Versus Khem Singh and another ... Respondents _______________________________________________________

3. CMPMO No.378 of 2023 Monika Kumari and others .......Petitioners Versus Mahender Singh and another ... Respondents ____________________________________________________

4. CMPMO No.380 of 2023 Monika Kumari and others .......Petitioners Versus Bhim Singh & another ... Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioner(s): Mr. G.R.Palsra, Advocate. For the Respondent(s):Mr. Praveen Kumar, Advocate for respondent No.1 & 2 in CMPMO No.376 of 2023 and for respondent No.1 in CMPMO Nos. 377, 378 380, of 2023.

Mr. Munish Datwalia, Advocate, for respondent No.3 in CMPMO No. 376 of 1 Whether the reporters of the local papers may be allowed to see the judgment?

2023 and for respondent No.2 in CMPMO Nos. 377, 378 380, of 2023.

_______________________________________________________ Sandeep Sharma, Judge(oral):

.

Being aggrieved and dissatisfied with order dated 14.06.2023 passed by learned Civil Judge, Thunag, District Mandi, H.P., whereby applications under Order 1 Rule 10 CPC, having been filed by the respondents, came to be allowed, petitioners-plaintiffs (hereinafter referred to as the plaintiffs) have approached this Court in the aforesaid petitions filed under Article 227 of the Constitution of India, praying therein to set aside aforesaid order dated 14.06.2023 passed by learned Court below in the afore applications filed by the respondents herein.

2. Precisely, the facts of the case, as emerge from the record are that plaintiffs filed a suit for possession by ejectment and recovery of arrears of rent and mesne profit against the respondents namely, Sh. Mahender Singh, Sh. Sanjeev Kumar, Sh. Vinod Kumar, Sh. Khem Singh and Sh. Bhim Singh in respect of building comprised in Khasra No.1374/198, measuring 0-6-10 bigha, situate in mohal Thunag, Tehsil Thunag, District Mandi, H.P.

3. Respondents by way of written statement refuted the claim of the plaintiffs that they are owner of the property and stated that respondent Smt. Gaurja Devi is the owner of the disputed shop ::: Downloaded on - 09/10/2023 20:33:59 :::CIS 3 and they are paying rent to her. After filing of aforesaid written statement, but before framing of issues, Smt. Gaurja Devi respondent in all the cases filed applications under Order 1 Rule 10 CPC, praying .

therein for her impleadment, averring therein that plaintiffs have filed suit against the defendants claiming the possession of the property, which has been purchased by her by way of oral sale from Sh. Maan Dass in the year 1988. Respondent Smt. Gaurja Devi further submitted that she has raised construction on the land in the years 1988, 2003, 2004 and 2006 and has been happily and peacefully living there with her son Bhim Singh. Respondent Smt. Gaurja Devi further averred in the applications that on 20.7.2020, plaintiffs started causing unlawful interference over the suit property while claiming themselves to be owners of the property. Above named respondent also claimed that electricity and water connection stand installed in her favour and as such, she being necessary party needs to be impleaded as defendant in the suit filed by the plaintiffs.

4. Aforesaid prayer made on behalf of respondent Smt. Gaurja Devi came to be specifically refuted by the plaintiffs, who while denying factum of ownership and possession of Smt. Gaurja Devi qua the property in question, stated that electricity and water connection are also not in the name of respondent Smt. Gaurja Devi.

5. On the basis of aforesaid pleadings adduced on record by the respective parties, learned trial Court by way of impugned order dated 14.06.2023 allowed the applications filed by respondent .

Smt. Gaurja Devi in all the cases, as a result thereof, she came to be impleaded as defendant alongwith original defendants in the suit having been filed by the plaintiffs. In the aforesaid background, plaintiffs have approached this Court in the instant proceedings, praying therein to set aside aforesaid order and dismiss the applications filed by respondent Smt. Gaurja Devi under Order 1 Rule 10 CPC

6. Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned order(s) passed in the above captioned cases, this Court finds no illegality and infirmity in the same and as such, no interference is called for.

7. No doubt, plaintiffs at first instance not impleaded Smt. Gaurja Devi as party respondent because as per them, defendants other than Smt. Gaurja Devi were in illegal possession of the suit property. In the suit plaintiffs never averred that applicant Smt. Gaurja Devi is in possession of the property. Factum with regard to possession, if any, by Smt. Gaurja Devi came to be highlighted with ::: Downloaded on - 09/10/2023 20:33:59 :::CIS 5 filing of the written statement by other defendants, wherein they took specific plea that they are the tenants of Smt. Gaurja Devi and not the plaintiffs. Defendants in their written statement submitted that Smt. .

Gaurja Devi is the owner in possession of the building and they are paying rent regularly to her for past so many years. Having taken note of aforesaid averments contained in the written statement having been filed by the defendants, coupled with the averments contained in the applications filed by Smt. Gaurja Devi under Order 1 Rule 10 CPC, learned Court below proceeded to accept the prayer made on behalf of Smt. Gaurja Devi for her being impleaded as party defendant.

8. Precisely, the grouse of the petitioner as has been highlighted in the petitions and further canvassed by Mr. G.R.Palsra, learned counsel representing the petitioners, is that the plaintiffs being dominus litis cannot be compelled to implead any person, whose impleadment is not necessary for adjudication of the case at hand.

Mr. G.R.Palsra, submitted that bare perusal of the averments contained in the plaint clearly reveals that at no point of time plaintiffs admitted Smt. Gaurja Devi to be owner of the property, rather she is residing with her son Bhim Singh, against whom plaintiffs has filed the suit. Learned counsel representing the petitioners further submitted that great prejudice shall be caused to the plaintiffs in case Smt. ::: Downloaded on - 09/10/2023 20:33:59 :::CIS 6 Gaurja Devi is impleaded and permitted to file written statement because in that event, plaintiffs may not get an opportunity to file cross objections to refute the claim put forth by Smt. Gaurja Devi that .

she has become owner by way of adverse possession. Learned counsel representing the petitioners further argued that original defendants namely Sh. Khem Singh and Sh. Bhim Singh are the nephew and son of Smt. Gaurja Devi respectively, who at no point of time was ever inducted as tenant in the premises and as such, otherwise is not entitled to claim adverse possession.

9. While placing reliance upon the judgment passed Hon'ble Apex Court in case titled Ram Prakash and another vs. Puttan Lal, (2020) 14 Supreme Court Cases 418, Mr. Palsra submitted that otherwise also plaintiffs being dominus litis cannot be compelled to implead person as a party respondent/defendant if his/her impleadment is not necessary for proper adjudication of the case. He also placed reliance upon the judgment passed by Hon'ble Apex Court in case tilted Asian Hotels (North) Limited versus Alok Kumar Lodha and others, (2022) 8 Supreme Court Cases 145, wherein it came to be held that plaintiff cannot be permitted to join any party as a defendant who may not be necessary and/or proper parties at all on the ground that plaintiffs is the dominus litis.

10. Mr. Munish Datwalia, learned counsel representing the respondents in all the cases supported the impugned order(s). He submitted that once it has specifically emerged on record by way of .

written statement filed by original defendants that Smt. Gaurja Devi is the actual owner of the property, coupled with the averments contained in the applications, wherein Smt. Gaurja Devi claims herself to be owner in possession alongwith Sh. Bhim Singh, no illegality can be said to have been committed by learned Court below while ordering impleadment of Smt. Gaurja Devi, who otherwise being necessary party ought to have been impleaded as party respondent by the plaintiffs while filing suit.

11. While making this Court peruse provision contained under Order 1 Rule 10(2) CPC, Mr. Datwalia, submitted that Court at any stage of the proceedings, either upon or without the application of either party can order impleadment of any person, whose presence before the Court may be necessary in order to enable the Court to adjudicate upon the controversy effectually and completely.

12. Before ascertaining the correctness of rival submissions made by learned counsel for the parties, this Court deems it fit to take note of provision contained under Order 1 Rule 10(2) CPC, which reads as under:-

"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.

13. Having perused the aforesaid provision, this Court finds merit in the contention of learned counsel representing the respondents that it is not necessary that party can only be impleaded or deleted on the application, if any, filed by the plaintiff or defendant, rather in terms of aforesaid provision of law, court having taken note of the relevance of the party sought to be impleaded can order his/her impleadment with a view to adjudicate the controversy completely. In terms of aforesaid provision of law, Court having taken note of the material adduced on record can order impleadment of any party and as such, there is no merit in the contention of Mr. G.R.Palsra, learned counsel for the petitioners that only plaintiff being dominus litis has/had right to decide to whom to implead or delete. Since in the case at hand original defendants specifically set up a case that suit property is not owned by the plaintiffs, rather by Smt. Gaurja Devi and they are paying rent to her, learned Court below rightly allowed the applications filed by Smt. Gaurja Devi under Order 1 Rule 10 CPC ::: Downloaded on - 09/10/2023 20:33:59 :::CIS 9

14. On account of aforesaid stand setup by the defendants, coupled with the averments contained in the applications filed by Smt. Gaurja Devi, prima facie dispute appears to be with regard to title of .

the suit land and as such, impleadment of Smt. Gaurja Devi, who claims herself to be owner of the suit property, is very much relevant and necessary for adjudication of the case. In the case at hand, plaintiffs are seeking possession from the defendants, who claims themselves to be tenants of Smt. Gaurja Devi and as such, it would be in the interest of both the parties in case Smt. Gaurja Devi is impleaded as party and provided an opportunity to prove her case by leading cogent and convincing evidence. No doubt, Smt. Gaurja Devi have a remedy of filing separate suit, but since question of title sought to be raised by Smt. Gaurja Devi is very much involved in the suit filed by the plaintiffs, coupled with the stand taken by the defendants that they are not tenants of original plaintiffs, no fruitful purpose would be served by asking Smt. Gaurja Devi to file separate suit, rather that would cause multiplicity of litigation.

15. Reliance placed by Mr. G.R. Palsra, learned counsel for the petitioners on the judgments passed by Hon'ble Apex Court in Mohamed Hussain Gulam Shariffi versus Municipal Corporation of Greater Bombay and others, (2020)14 Supreme Court Cases 392 and Asian Hotels (North) Limited versus Alok Kumar Lodha ::: Downloaded on - 09/10/2023 20:33:59 :::CIS 10 and others, (2022) 8 Supreme Court Cases 145, is wholly misplaced. In Mohamed Hussain Gulam Shariffi case(supra) Hon'ble Apex Court while answering the question that whether parties .

may be joined in the suit against the wishes of plaintiff ruled that unless parties concerned can establish that they are necessary parties, they cannot be joined in the suit against the wishes of the plaintiff, who is the dominus litis. Relevant para Nos.6,9 and 11 of the aforesaid judgment are as under:-

"6. Accordingly, the appellant filed a Suit in the Bombay City Civil Court, Greater Mumbai challenging the notice dated 17.05.2013 issued under Section 351 of the Act as also letter dated 20.06.2013. The appellant also prayed for injunction restraining respondent No.1 (defendant No.1) from acting upon the notice dated 17.05.2013 and letter dated 20.06.2013. During the pendency of the suit, respondent Nos. 2 and 3 filed an application (Chamber Summons No. 1353 of 2014) seeking permission to implead them as defendants in the suit. It was, inter alia, alleged that respondent Nos. 2 and 3 have an interest in the suit house inasmuch as they claimed to have an ownership rights in the suit house. It was also alleged that one Civil Suit No. 424/2008 seeking specific performance of agreement is filed by respondent Nos. 2 and 3 in relation to the suit house and the same is pending. It was thus prayed that they (respondent Nos. 2 and 3) being necessary parties for proper adjudication of the rights of the parties in relation to the suit house be allowed to become defendants in the suit in question.

9. The appellant, felt aggrieved by this order, filed writ petition before the High Court. By impugned order dated 16.11.2016, the High Court dismissed the appellant's writ petition giving rise to filing of this appeal by way of special leave petition against the impugned order of the High Court.

11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and set aside the impugned order."

16. No doubt, in the aforesaid judgment, Hon'ble Apex Court held that nobody can be joined in the suit against the wishes of the plaintiff, but in case parties seeking to join proceedings succeed in .

establishing that they are necessary parties, their impleadment can be ordered against the wishes of the plaintiff.

17. Similarly, in case titled Asian Hotels (North) Limited versus Alok Kumar Lodha and others, Hon'ble Apex Court held that plaintiff cannot be permitted to join any party as defendant, who may not be necessary or proper party at all on the ground that plaintiff is dominus litis. Relevant para No.37 of the aforesaid judgment is as under:-

"37. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi (supra). However, the principle that the plaintiffs is the dominus litis shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litis."

18. If the aforesaid judgment is read in its entirety, it clearly reveals that plaintiff being dominus litis can add or delete any party but in case he seeks to join party, which is not necessary, he cannot be permitted to implead such person on the ground that he is dominus litis. In the instant case, for the reasons taken note hereinabove, Smt. ::: Downloaded on - 09/10/2023 20:34:00 :::CIS 12 Gaurja Devi successfully established on record that she being necessary party is required to be impleaded as party and as such, no illegality and infirmity can be said to have been committed by learned .

Court below while passing impugned orders in all the above captioned cases.

19. Consequently, in view of the above, the present petitions are dismissed being devoid of any merit and impugned order(s) dated 14.06.2023 passed in all the cases, is upheld. Pending applications, if any, also stand disposed of.

                          r                                   (Sandeep Sharma),
                                                                   Judge

    October 05, 2023
          (shankar)








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