Baijnath Sharma vs Dharam Singh
2021 Latest Caselaw 8785 MP

                                     1
              HIGH COURT OF MADHYA PRADESH,
                       BENCH AT GWALIOR
                             MP-935-2021
             (Baijnath Sharma Vs. Dharam Singh & Anr.)



Gwalior, Dated : 14/12/2021

      Shri Gaurav Mishra, learned counsel for the petitioner.

      Shri Amit Lahoti, learned counsel for respondent No.1.

This Miscellaneous Petition under Article 227 of the Constitution

of India has been filed against the order dated 11/02/2021 (Annexure

P/1) passed by the 3rd Civil Judge, Class-II, Vidisha, District- Vidisha

(M.P.) in Civil Suit No. RCS49/A/2020, whereby learned trial Court has

allowed the application of defendant/respondent No.1 under Order 1

Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as

"CPC") for impleading Municipal Council as proper party in the suit.

Heard learned counsel for both the parties and perused the material

available on record.

Leaned counsel for the petitioner/plaintiff submits that the

petitioner has filed a civil suit for permanent injunction against the

respondent No.1 in respect of the suit property which belongs to the

plaintiff/petitioner. Defendant/respondent No.1 filed an application under

Order 1 Rule 10 of CPC seeking impleadment of Municipal Council in

the suit with the submission that the suit land belongs to

Nazul/Government land. The trial Court, in the impugned order, has

noted that Municipal Council is not necessary party and an effective

decree can be passed without impleading it but at the same time without

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-935-2021 (Baijnath Sharma Vs. Dharam Singh & Anr.)

any reasonable basis, the application of the defendant/respondent No.1

has been allowed and Municipal Council has been impleaded in the suit.

The plaintiff has not claimed any right against the Municipal Council.

The suit land is a part of private land purchased by the plaintiff. This fact

is fortified by the report of Municipal Council itself. Thus, this is a

dispute between the plaintiff and defendant No.1. The Municipal Council

is neither necessary nor proper party in the suit, therefore, impugned

order is per se illegal and deserves to be quashed. Learned counsel for

the petitioner has placed reliance upon the judgment of Hon'ble Supreme

Court in the case of Mahamed Hussain Gulam Ali Shariffi Vs.

Municipal Corporation of Greater Bombay & Ors. [(2020) 14 SCC

392].

Learned counsel for the respondent/defendant submits that the trial

Court has observed that Municipal Council is not necessary party but

being it as proper party for effective and final adjudication of the

controversy between the parties, the impugned order has been passed in

exercising judicious discretion by the trial Court which should not be

interfered with by this Court in the petition filed under Article 227 of the

Constitution of India. He has placed reliance upon the judgment of

Hon'ble Apex Court expounded in the case of Shalini Shyam Shetty &

Another Vs. Rajendra Shakar Patil [(2010) 8 SCC 329].

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-935-2021 (Baijnath Sharma Vs. Dharam Singh & Anr.)

Heard. Considered.

In the judgment of Mahamed Hussain Gulam Ali Shariffi Vs.

Municipal Corporation of Greater Bombay & Ors. (supra), the Hon'ble

Supreme Court has categorically held that if the suit can be decided in

the absence of the proposed party, the same cannot be impleaded even

such party is found to be proper party.

The general principles with regard to maintainability of the

petition under Article 227 of the Constitution of India expounded in the

judgment cited by the respondents are not disputed but in above case, the

order of trial Court for impleadment of party was challenged by way of

writ petition before the High Court and in turn the order of High Court

was assailed by way of appeal before the Hon'ble Supreme Court

meaning thereby the petition under Article 227 of the Constitution of

India is maintainable against such order. Thus, the objection of the

respondent regarding maintainability of this petition is not tenable.

Having heard learned counsel for the parties and on perusal of the

record, it is found that the petitioner/plaintiff has filed the suit for

permanent injunction against the defendant/respondent No.1 alleging

encroachment made on the private land of the plaintiff. Defendant has

pleaded that the suit land is a part of government land. This factual

dispute can very well decided on the basis of evidence to be adduced by

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-935-2021 (Baijnath Sharma Vs. Dharam Singh & Anr.)

both the parties. Perhaps, in view of this position, learned trial Court

itself has held that Municipal Council is not necessary party in the suit.

If the suit land is a government land, Municipality is well

competent to take care of government land. No rights of Municipal

Council are going to be affected by the decree to be passed in this case.

The plaintiff is not seeking any relief against the Municipal Council.

Thus, Municipal Council can not be termed as necessary party or proper

party in this case. The effective and final adjudication of the dispute can

be made even in the absence of Municipal Council, therefore, in view of

the above legal position, the impugned order is per se illegal and

accordingly, not sustainable. Consequently, the instant petition is

allowed. The impugned order dated 11/02/2021 is set-aside. The

application filed by the defendant/respondent No.1 for impleadment of

Municipal Council is dismissed.

(SATISH KUMAR SHARMA) JUDGE

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4dee473fe7 7953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D159B5557 5E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2021.12.16 11:33:06 +05'30'