Chattisgarh High Court

Dr. Sharadchand Agrawal vs Arvind Kumar on 26 September, 2022

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                                                                 W.P.(227) No. 284 of 2019


                                                                                  NAFR


                   HIGH COURT OF CHHATTISGARH, BILASPUR
                             Writ Petition (227) No. 284 of 2019

      Dr. Sharadchand Agrawal, S/o. Late Rajeevlochan Agrawal, aged about 58
       years, R/o. Baniyapara, Durg, Police Station and Post Durg, Tahsil and
       District Durg, Chhattisgarh
                                                        ---- Petitioner/Plaintiff

                                       Versus

   1. Arvind Kumar, S/o. Kripashankar Singh, aged about 52 years, R/o. Qtr. No.
      9A, Road 46, Sector 10, Police Station Sector 6, Bhilai, Tahsil and District
      Durg, Chhattisgarh

   2. Municipal Corporation, Bhilai, through Commissioner, Municipal Corporation,
      Bhilai, Tahsil and District Durg, Chhattisgarh

   3. State of Chhattisgarh, through: Collector/Officiating Secretary, Urban
      Administration and Development, Chhattisgarh, District Durg, Chhattisgarh

   4. Smriti Grih Nirman Sahakari Samiti, Srmriti Nagar, Junwani, through: its
      President, Samiti Grih Nirman Sahakari Samiti, Smriti Nagar, Junwani,
      District Durg, Chhattisgarh

                                                     ---- Respondents/Defendants

For Petitioner/Plaintiff : Mr. Manoj Paranjpe, Advocate For Respondent No. 1 : Mr. K. Rohan, Advocate For Respondent No. 3 : Mr. Lalit Jangde, Deputy Govennment Advocate

For Respondent No.2 : None, though served

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

26.09.2022

1. Heard.

2. In this writ petition under Article 227 of the Constitution of India the

petitioner/plaintiff would challenge the legality, validity and propriety of the

order dated 13.03.2019 passed by the First Additional District Judge, Durg

(C.G.) in Civil Suit No. 11-A/2013.

3. The case in nutshell is that a civil suit was filed by the petitioner/plaintiff for

W.P.(227) No. 284 of 2019

eviction, possession and damages against respondents No. 1 to 3 on the

ground that the petitioner is owner of the property in question bearing Survey

No. 447 admeasuring 2400 sq.ft. and part of the said plot has been

encroached by defendant No.1/respondent No.1.

4. The written statement filed by defendant No.1 states that he denied the

allegation of encroachment and specifically stated that Plot No. B-130 under

Survey No. 462 was purchased through registered sale-deed dated

10.11.2000 from Smriti Grih Nirman Sahakari Samiti and the said plot was

demarcated on 07.09.2002. In the written statement, respondent No.1 has

further pleaded that some part of Survey No. 447 has been encroached by

that Samiti and not by defendant No.1.

5. During pendency of the Civil Suit an application under Order 1 Rule 9 of

C.P.C. read with Order 1 Rule 13 of C.P.C. was moved before the trial Court

by respondent No.1 and same was rejected vide order dated 18.04.2018

holding that the plaintiff has sought relief of eviction from Survey No. 447

only and it is specifically pleaded by the plaintiff that he has nothing to do

with Survey No. 462, therefore, Smriti Grih Nirman Sahakari Samiti is not

necessary party and the application moved by defendant No.1 under Order 1

Rule 9 of C.P.C. was rejected. The order dated 18.04.2018 was challenged

by respondent No.1 before this Court by filing W.P.(227) No. 455/2018 and

vide order dated 06.12.2018, learned counsel for respondent No.1 herein

withdrew that writ petition with liberty to raise objection with regard to non-

joinder of necessary party during the course of trial. Respondent

No.1/Plaintiff No.1 again moved application under Order 14 Rule 2 of C.P.C.

proposing therein for formulation of additional issue that "whether there is

mis-joinder of parties" inter alia on the ground that the plaintiff has sought

vacant possession of the property after demolition of the illegal

constructions. It is further pleaded that part of Survey No. 447 has been

W.P.(227) No. 284 of 2019

encroached by Smriti Grih Nirman Sahakari Samiti, therefore, it is necessary

party. The application moved by defendant No. 1 was replied to by the

plaintiff and vide order dated 13.03.2019 the learned trial Court allowed the

application and additional issue was framed on 21.02.2019 and same has

been decided as preliminary issue where it is held that Smriti Grih Nirman

Sahakari Samiti is necessary party to the suit. Thereafter, permitted

defendant No.1 to implead Smriti Grih Nirman Sahakari Samiti as party

defendant. Against the order passed by the trial Court, the plaintiff has

approached this Court by filing the instant writ petition.

6. Mr. Manoj Paranjpe, learned counsel for the petitioner/plaintiff, submits that

earlier same application moved by respondent No.1 was rejected by the trial

Court vide order dated 18.04.2018 and thereafter writ petition was filed

before this Court wherein liberty was granted to raise available grounds

before the trial Court. Taking the benefit of liberty granted by this Court,

application has been moved again wherein impliedly same relief has been

claimed by defendant No.1/respondent No.1 and same has been allowed by

the learned trial Court. Defendant No.1 has been permitted to implead Smriti

Grih Nirman Sahakari Samiti as party respondent which is not permissible in

law as though it is not barred by res judicata but it is barred by public policy.

He placed reliance upon the judgments of Hon'ble Supreme Court in the

matters of Surjit Singh and Others vs. Gurwant Kaur and Others, (2015)

1 SCC 665; Kanaklata Das and Others vs. Naba Kumar Das and Others,

(2018) 2 SCC 352 and Sudhamayee Pattnaik and Others vs. Bibhu

Prasad Sahoo and Others, 2022 SCC OnLine SC 1234.

7. On the other hand, Mr. K. Rohan, learned counsel for respondent No.1, and

Mr. Lalit Jangde, learned Deputy Government Advocate for respondent No.

3, submit that the trial Court has passed well reasoned order which does not

require interference by this Court.

W.P.(227) No. 284 of 2019

8. I have heard learned counsel for the parties and perused the material

available on record.

9. From record, it appears that on 18.04.2018 an application moved by

respondent No.1 under Order 1 Rule 9 of C.P.C. was rejected and

thereafter writ petition was filed before this Court wherein liberty was granted

to raise available grounds before the trial Court. Respondent No.1 moved an

application under Order 14 Rule 2 of C.P.C. proposing therein formulation of

additional issues that whether there is mis-joinder of parties and the same

was allowed by the trial Court and vide order dated 13.03.2019

petitioner/plaintiff was directed to implead Smriti Grih Nirman Sahakari

Samiti as defendant No.4. The first issue for consideration would be whether

under Order 14 Rule 2 of C.P.C. the issue framed by the learned trial Court

can be decided? Order 14 Rule 2 of C.P.C. is reproduced herein:-

Order 14 of C.P.C. - Settlement of issues and determination of suit on issues of law or on issues agreed upon -

2. Court to prounounce judgment on all issues. - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

W.P.(227) No. 284 of 2019

10. From perusal of Order 14 Rule 2 of C.P.C., it appears that where the court is

of the opinion that the case or any part thereof may be disposed of on an

issue of law only, it may try that issue first if that issue relates to the

jurisdiction of the court, or a bar to the suit created by law. The issue which

has been framed and decided by learned trial court is neither relates to law

nor deals with any bar to the suit created by law, therefore, the learned trial

Court committed illegality in entertaining such application.

11. In Kanaklata Das (supra), the relevant para would be 11.4 which is as

under:-

11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, agaiinst his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co- plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and not it can be decided or how his presence is necessary for the effective decision of the suit. (See Ruma Chakraborty v. Sudha Rani Banerjee, (2005) 8 SCC

140).

12. From above cited judgment passed by the Hon'ble Supreme Court, it is

crystal clear that the plaintiff being a dominus litis cannot be compelled to

make any third person, a party to the suit, especially when such person is

unable to show as to how he is a necessary or proper party to the suit and

how without his presence, the suit can neither proceed nor it can be decided

or how his presence is necessary for the effective decision of the suit.

W.P.(227) No. 284 of 2019

13. In a recent judgment in the case of Sudhamayee Pattnaik (supra), the

Hon'ble Supreme Court has dealt with the provision under Order 1 Rule 10

of C.P.C. in para-11 as under:-

11. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the dominus listis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wisth of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.

14. In the case of Surjit Singh (supra), the Hon'ble Supreme Court in para-19

has held as under:-

19. After so stating, the Court in Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993 obsefved that if the correctness of the order of the Civil Judge in disposing of the application under Order 9 Rule 7 filed by the appellant was questioned in an appeal against the decree in the suit, these principles and the observations would have immediate relevance. In that context, the three-Judge Bench proceeded to deal with various kinds of interlocutory orders and opined that certain orders that are interlocutory in nature are capable of being altered or varied by the subsequent applications for the same relief, normally

W.P.(227) No. 284 of 2019

only on proof of new facts or new situations which subsequentl;y emerge. The Court emphasised on the nature of the order and ruled that if it does not impinge upon the legal rights of parties to the litigation the principle of res judicata would not apply to the findings on which the order is passed. However, the Court observed that if applications were made for relief on the same basis after the same had once been disposed of, the court would be justified in rejecting the same as an abuse of the process of the court. Thereafter, the Court proceeded to state that the successive applications based on same set of facts, if they are interlocutory orders of different nature and are passed for preservation of property, do not in any manner decide the merit of the controversy in issue. They can be rejected on the ground of abuse of the process of the court but not by principle of res judicata. The said principle was followed in United Provinces Electric Supply Co. Ltd. v. Workmen, (1972) 2 SCC 54 and S. Malla Reddy v. Future Builders Coop. Housing Society, (2013) 9 SCC 349.

From ratio laid down in above stated judgment, it is clear that if

application was made for relief on the same basis after the same had once

been disposed of, the court would be justified in rejecting the same as an

abuse of the process of the court. It is also observed that the application can

be rejected on the ground of abuse of the process of the court but not by

principle of res judicata.

15. After going through the pleadings of the plaint, it is quite apparent that

plaintiff has not sought any relief against the proposed defendant i.e. Grih

Nirman Sahakari Samiti. The application moved by respondent No.1 was

rejected by the learned trial Court on 18.04.2018 and again successive

application based on same set of facts has been moved by respondent No.1

W.P.(227) No. 284 of 2019