Madhya Pradesh High Court
Rajkumar Bahrani vs Shri Dalchandra Narayandas Jain ... on 15 November, 2021
Author: Vivek Agarwal
1 MP-3568-2021
The High Court Of Madhya Pradesh
MP No. 3568 of 2021
(RAJKUMAR BAHRANI Vs SHRI DALCHANDRA NARAYANDAS JAIN TRUST ( D.N.JAIN TRUST))
1
Jabalpur, Dated : 15-11-2021
Shri Amit Sahani, learned counsel for the Petitioner/ Plaintiff.
This Miscellaneous Petition under Article 227 of the Constitution of
India has been filed by the plaintiff being aggrieved of order dated 27.08.2021
(Annexure-P/4) passed in Civil Suit No.436-A of 2021 by Learned 9th Civil
Judge, Class-II, Jabalpur. Whereby on an application moved by the defendant
under Order 7 Rule 11 of CPC, twin directions have been issued to the
plaintiff namely to implead State Government as a defendant No.2 and
secondly he has been directed to pay requisite Court fees in view of the fact
that compensation of Rs.2lakh has been sought by the plaintiff against the
defendants.
Learned counsel for the petitioner submits that as far as Court fees is
concerned plaintiff has already paid a Court fees of Rs.25,120/- as is
mentioned in the order sheet dated 25.03.2021 and, therefore, there was no
need to issue any direction to pay additional Court fees. However, Shri
Sahani is in agreement that even if this aspect of payment of Court fees to the
tune of Rs.25,00,120/- was overlooked by the trial Court then it can always
be brought to the notice of the trial Court that since petitioner/ plaintiff has
already paid the requisite Court fees as per the valuation of the suit taking into
account, claim of compensation of damages to the tune of Rs.2lakhs and
thereafter valuation of the suit for declaration at Rs.5,000/- and permanent
injunction at Rs.1,000/- respectively.
Thus, the main bone of contention put forward by Shri Amit Sahani is
that firstly in terms of the provisions contained in Order 7 Rule 11, no
directions could have been issued to the plaintiff to implead State as a party in
as much as no relief has been sought against the State and in support of this
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contention Shri Sahani places reliance on the judgment of Supreme Court in
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case of J.J. Lal Private Limited and others vs. M.R. Murali and
another (2002) 3 SCC 98 wherein placing reliance on paragraphs 27 and 28,
it is submitted that in that case there was a dispute between the landlord and
tenant. Municipal Corporation of Chennai had moved an application in the
suit for impleadment in the proceedings on the ground that the premises in
question which was subject matter of litigation in those proceedings was
owned by it and, therefore, claimed that it needs to be impleaded as a party in
the appeals. It is mentioned in para 28 of the said order that Hon'ble Supreme
Court held that the applications as were moved by the Municipal Corporation
of Chennai raised controversies which was beyond the scope of the
proceedings that is a dispute between the landlord and tenant in a suit. It has
been held that the relationship of the Municipal Corporation with the
respondents and their mutual rights and obligations are not germained to the
present proceedings and in this backdrop Hon'ble Supreme Court held that
Municipal Corporation of Chennai was not a necessary party.
Shri Amit Sahani on being asked as to how plaintiff has come into
possession of the suit property admits that suit property is situated on Nazul
land. His application for allotment is pending but no allotment letter has been
issued in favour of the plaintiff. He further admits that he is in possession of
the said land for last 40 years but has not been able to produce any
documentary evidence either in the form of a letter of allotment or any other
communication and, therefore, basically harps on the presumption that
plaintiff has permissive possession over the suit property and, therefore,
submits that there is no need for him to implead State Government to Nazul
Officer as a party. In support of his contention, petitioner has drawn attention
of this Court to some communication which was made by the Assistant
Engineer of Nagar Nigam, Jabalpur to the Nazul Officer on 20.09.1996 but in
any case that is not a letter of allotment by the Nazul which admittedly has the
said land recorded in its name in the relevant records.
The fact of the matter is that a suit has been filed alleging that plaintiff is
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in possession of an area measuring 750sq. feet for over 40 years. Allegation is
that the defendant has demolished boundary wall of the suit premises where
the plaintiff is in possession and State Government has never taken any
objection. Allegation is that on 16.03.2021 defendant through his agents and
representatives demolished the structure of the store of the plaintiff which is
located behind the shop by using JCB machine and have removed the debris.
However, the fact of the matter is that land in question admittedly
belongs to Nazul. In the Revenue records enclosed by the petitioner himself,
land is mentioned as Milkiyat Sarkar. Therefore, to appreciate the facts in
controversy as to whether Nazul department that is the State has made any
allotment in favour of the defendant or not and what is the extent of such
allotment, in the opinion of this Court, once it is admitted that the land in
question is that of Nazul, Nazul is a necessary party for adjudicating the title
of the petitioner in as much as petitioner has also sought a declaration in his
suit to the affect that defendant has no right or title to interfere in the
possession of the plaintiff in the disputed property. This aspect of title of the
defendant cannot be adjudicated in the absence of State being impleaded as a
party. This gets support from the provisions contained in Order 1 Rule 3B
CPC.
Therefore, in the present case, nature of the dispute being different and
where it is not an admitted fact like in case of J.J. Lal Private Limited and
others (supra) that Municipal Corporation had put the landlord in possession
of the property and landlord in turn had rented it out to the tenant and
thereafter had filed a suit for eviction which was necessarily in domain of
landlord tenant dispute and had no bearing on the title of the property, facts
being different, ratio of the law laid down in case of J.J. Lal Private
Limited will not be attracted to the facts and circumstances of the present
case.
As far as petitioner's contention that in case Court would have found
that plaintiff has not impleaded proper party then suit could have been
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dismissed and no direction can be issued to the plaintiff invoking provisions
contained in Order 7 Rule 11 directing the plaintiff to implead State as a party
is concerned, it is true the defect of misjoinder of parties and causes of action
is not a ground for rejection of complaint as held in case of Prem Lala
Nahata Vs. Chandi Prasad Sikaria, AIR 2007 SC 1247 and, therefore,
to that extent impugned order needs to be set aside. But it is equally true that
in terms of the provisions contained in Order 1 Rule 3B of CPC, State is a
necessary party and, therefore, the impugned order is set aside to that extent
of giving direction to the plaintiff to implead State as a party on an application
under Order 7 Rule 11 CPC. However, it is further held that the direction of
the trial Court to implead State as a party will be treated to be a direction
issued to the plaintiff in terms of the provisions contained in Order 1 Rule 3B
of CPC and in above terms petition is disposed of.
(VIVEK AGARWAL)
JUDGE
AT
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Digitally signed by APARNA TIWARI
Date: 2021.11.18 17:10:11 IST
