Santosh vs Rajendra Singh Bagga
2024 Latest Caselaw 3694 MP

Madhya Pradesh High Court

Santosh vs Rajendra Singh Bagga on 7 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 7 th OF FEBRUARY, 2024
                WRIT PETITION No. 21623 of 2011

BETWEEN:-
1.    SANTOSH S/O LATE SHRI MANGILAL, AGED
      ABOUT 30 YEARS, R/O VILLAGE BERKHEDA
      SALLAM TEHSIL HUZUR DISTRICT BHOAPL
      (MADHYA PRADESH)

2.    RAKESH S/O LATE SHRI MANGILAL, AGED
      ABOUT 20 YEARS, R/O VILLAGE BERKHEDA
      SALLAM TEHSIL HUZUR DISTRICT BHOAPL
      (MADHYA PRADESH)

3.    GYAN SINGH S/O LATE SHRI MANGILAL, AGED
      ABOUT 34 YEARS R/O VILLAGE BERKHEDA
      SALLAM TEHSIL HUZUR DISTRICT BHOAPL
      (MADHYA PRADESH)

                                                     .....PETITIONERS
(BY SHRI ASHOK LALWANI - ADVOCATE)

AND
1.    RAJENDRA SINGH BAGGA S/O SHRI YASHWANT
      SINGH BAGGA, AGED ABOUT 55 YEARS, R/O 7
      NEEL KANTH COLONY IDGAH HILLS DISTRICT
      BHOPAL (MADHYA PRADESH)

2.    TOWN & COUNTRY PLANNING THROUGH ITS
      JOINT DIRECTOR DISTRICT BHOPAL R/O
      'KACHNAR', PARYAVARAN PARISAR E-5, ARERA
      COLONY, BHOPAL (MADHYA PRADESH)

3.    THE STATE OF MADHYA PRADESH THROUGH
      COLLECTOR, BHOPAL COMPETENT AUTHORITY
      BHOPAL. (MADHYA PRADESH)

4.    SUB DIVISIONAL OFFICER (REV.) TAHSIL HUZUR,
      DISTRICT BHOPAL. (MADHYA PRADESH)

                                                    .....RESPONDENTS
                                    2
(NONE)

      This petition coming on for admission this day, th e court passed the
following:
                                    ORDER

This Petition under Article 227 of Constitution of India has been filed

against order dated 28.09.2011 passed by 14 th Additional District Judge, Bhopal in RCSA No.359/2011 by which the suit filed by respondent No.1 has been permitted to be withdrawn under Order 23 Rule 1 sub-rule 4 of CPC.

2. It is submitted by counsel for petitioners that on the complaint made by petitioners, certain permissions, which were granted in favour of respondent No.1, were withdrawn. The said withdrawal order was challenged by

respondent No.1 by filing RCS No.359/2011. Since, petitioners were not impleaded as defendants, therefore, they filed an application under Order 1 Rule 10 CPC, which was allowed by holding that petitioners are the necessary party. Without impleading petitioners as defendants by amending the cause title, respondent No.1 filed an application under Order 23 Rule 1 sub-rule 3 of CPC seeking permission to withdraw the suit on the ground that it has certain inherent defects. Without giving any opportunity of hearing to petitioners, the said application was allowed and the suit was permitted to be withdrawn under Order 23 Rule 1 sub-rule 4 of CPC. It is submitted that once petitioners were held to be necessary party, then application under Order 23 Rule 1 sub-rule 3 of CPC should not have been taken up without giving an opportunity to petitioners to oppose the same. However, it is fairly conceded by counsel for petitioners that respondent No.1 had also filed RCS No.384-A/2011 for declaration of title and permanent injunction. The said Civil Suit has been decreed by judgment

and decree dated 22.11.2012 passed by 3rd Additional District Judge, Bhopal

against which petitioners have filed First Appeal No.1066/2012, which is still pending.

3. Heard the learned counsel for petitioners.

4. In view of judgment and decree dated 22.11.2012, there is a declaration of title in favour of respondent No.1. Although such declaration is subject matter of F.A. No.1066/2012. In case if F.A. No.1066/2012, which has been filed by petitioners is decreed, then as a natural corollary, respondent No.1 would lose his title and then there is no question of any kind of permission in respect of said land in his favour and in case if F.A. No.1066/2012 is dismissed, then petitioners would lose their claim regarding title over the land in dispute and would also lose the status of necessary party.

5. Under these circumstances, this Court is of considered opinion that once the title of parties is sub-judice before this Court in F.A. No.1066/2012, then no useful purpose would be served by entertaining this writ petition because whatever judgment is passed in F.A. No.1066/2012 that will govern the fate of present petition also.

6. Accordingly, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE SR*