Dhanush Ram vs Addl. District Judge Court No. 2 Gonda ...
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Allahabad High Court

Dhanush Ram vs Addl. District Judge Court No. 2 Gonda ... on 13 May, 2024

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:37002
 
Court No. - 7
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7343 of 2014
 

 
Petitioner :- Dhanush Ram
 
Respondent :- Addl. District Judge Court No. 2 Gonda And Others
 
Counsel for Petitioner :- Nirankar Nath Jaiswal,Ashok Kumar,Divya Gupta,Saima Khan
 
Counsel for Respondent :- U.N. Misra,Hari Ram Shukla,Pawan Kumar Sharma,R.R. Upadhyaya,Ram Kumar Singh,Surya Kumar
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Sri Ashok Kumar, learned counsel appearing on behalf of the petitioner and Sri Pawan Kumar Sharma on behalf of respondent No.s 4 to 6.

2. No one has appeared on behalf of respondent Nos. 2 and 3 despite service of notice.

3. By means of present petition the petitioner has challenged the order dated 3.10.2014 passed by Additional District Judge, Court No.2, Gonda whereby he has allowed the revision preferred by respondent No.s 2 and 3 and directed the petitioner to make them parties in the suit proceedings. Apart from the above, the revisional court has also directed the petitioner to implead State authorities and Gaon Sabha as parties in the suit proceedings.

4. The facts in brief leading to filing of this petition are that the petitioner had filed a suit for partition and injunction against opposite party No.s 4 to 6. It is further stated that the petitioner along with opposite party No.s 4 to 6 belongs to the same family and the dispute relates to the property of plot No.189 Kha situated in Village Belbhariya, Pargana, Tehsil and District Gonda. It was stated by learned counsel for the petitioner that the said land is abadi land and has been in continuous occupation and possession of of the ancestors of the petitioner. Notices were issued to the defendants who had put in appearance and also filed written statement. Opposite party No.s 2 and 3 are strangers to the dispute and also to the family of the petitioner and the parties in the suit moved application under Order 1 Rule 10 CPC with the prayer that they may also be impleaded as parties in the suit proceedings. The petitioner had opposed the said application and the trial court by means of order dated 5.2.2014 rejected the said application holding that the applicants were not able to demonstrate that either they are proper parties or necessary parties or were in any connected with the lis raised by the plaintiff in the suit.

5. Aggrieved by the order of the trial court dated 5.2.2014 opposite party Nos. 2 and 3 preferred a revision in the court of Additional District Judge, Gonda, who by means of the impugned order dated 3.10.2014 has not only allowed the application under Order 1 Rule 10 preferred by opposite party No.s 2 and 3 but has also proceeded to direct the petitioner to implead State of U.P. and Gaon Sabha as defendants in the said suit.

6. Learned counsel for the petitioner while assailing the order passed by Additional District Judge has submitted hat even the Additional District Judge could not find any infirmity in the findings recorded by the trial court to the effect that opposite parties No.2 and 3 were not in any manner connected with the suit proceedings or had any interest in the property in dispute but on mere apprehension had allowed the application preferred by respondents No.2 and 3.

7. The revisional court in the impugned order has looked into the family tree produced by the parties where also it was satisfied that opposite party No.s 2 and 3 are in no way connected with the plaintiff or the defendants in the suit but merely because the disputed land was lying vacant for substantial long length of time it was of the opinion that there may be chances that the said land is gaon sabha property and, therefore had directed the petitioner to implead the gaon sabha and State of U.P. apart from being the applicant as defendants in the suit proceedings.

8. Learned counsel for the petitioner has submitted that the said order is illegal and arbitrary in as much as while considering the application under Order 1 Rule 10 CPC it has been able to demonstrate that the applicant is either a necessary party or proper party and is connected with the suit proceedings in some manner or the said property the said application can be allowed. He submits that in case a person is not found to be proper or necessary party the court has not jurisdiction to implead him against the wishes of the plaintiff. he has relied upon the judgment of Supreme Court in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Center and Hotels and others, reported in 2010 (111) RD 189.

9. Learned counsel for opposite party No.s 4 to 6 has supported the case of the petitioner.

10. I have heard learned counsel for the parties and perused the record.

11. In the facts of the present case the only question which arises for consideration by this Court is as to whether on mere apprehension without there being any substantial facts to demonstrate that either the applicant or the State of U.P. or Gaon Sabha is a necessary party or proper party and the court directed the said person to be impleaded in the suit proceedings.

12. There is no dispute with regard to the fact that the suit was filed for partition and permanent injunction by the petitioners against opposite party No.s 4 to 6. It is in those proceedings that application under Order 1 Rule 10 CPC has been preferred by opposite party No.s 2 and 3 stating that in case the injunction as sought by the plaintiff is granted they may be adversely affected. The trial court after examining the contentions made by the applicant duly considered the nature of the claim made by the plaintiff and also the right pressed by the applicant praying that they made be made parties in the suit proceedings and the trial court was fully satisfied that they were not necessary party in the sit and consequently rejected the application under Order 1 Rule 10 CPC. The revisional court on the other hand, did not dispute the findings recorded by tehe trial court but additionally held that that there are chances of the said land to be of gram sabha and consequently directed the petitioner to make Sate of U.P. and Gaon Sabha as parties.

13. The issue which falls for consideration as to whether in aforesaid circumstances the applicants or the gaon sabha or State of U.P. were necessary or proper parties. The general rule in regard to impleadment of parties is that the plaintiff in a suit being domunus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. The general rule is subject to the provisions of Order 1, Rule 10 (2) of Code of Civil Procedure Code, which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:-

"Court may strike out or add parties,

(2). The Court may at any stage of the proceedings, either upon or with out 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 defendants, 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 the settle all the questions involved in the suit, be added".

14. From a perusal of the aforesaid provisions, it is clear that even where any application is made by any person for impleadment as party the court has discretion to direct the plaintiff to make that person as a party, who ought to have been joined as party and in whose absence no effective decree could be passed at all by the Court . If a necessary part is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary part, is a person whose presence would enable the Court to completely effectively and adequately adjudicate upon all mattes in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has not jurisdiction to implead him, against the wishes of the plaintiff.

15. In the present case the only facts which may be considered by the trial court is that when a land has been vacant for substantially long time there are chances of the said land to be of gaon sabha and accordingly directed the petitioner to implead the gaon sabha and State of U.P. . Before the said application could have been allowed it was necessary for the court to have recorded a finding as to whether the applicant i.e. State of U.P. or Gaon Sabha was a proper party in the present case. It is noticed that there was no facts before the court nor any application made by opposite party No.2 and 3 to indicate that the disputed land was owned by Gaon Sabha or State of U.P. and in absence of such allegation or findings made in the application the court could not have directed Sate of U.P. or Gaon Sabha to be made parties. Accordingly, the order impugned is clearly without any application of mind and not in conformity with the provisions contained under Order 1 Rule 10 of CPC.

16. This Court after examining the aforesaid facts is of the view that the trial court had correctly adjudicated the said application and after examining the same had found that the applicant did not have any relationship with the disputed land and was stranger to the aforesaid suit and consequently rejected the application. The revisional court has on the contrary allowed the revision without adequately considering the relevant aspect of the matter as discussed herein-above and accordingly fell into the error while allowing the said revision.

17. In light of the above, the writ petition is allowed.

18. The order dated 3.10.2014 passed by Additional District Judge, Court No.2, Gonda, as contained in Annexure No.7 to the petition, is set aside.

(Alok Mathur, J.)

Order Date :- 13.5.2024

RKM.