Madhya Pradesh High Court
Mohan vs Omprakash on 18 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:7157
1 MP-2582-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 18th OF MARCH, 2025
MISC. PETITION No. 2582 of 2024
MOHAN AND OTHERS
Versus
OMPRAKASH AND OTHERS
Appearance:
Shri Avinash Yadav, learned counsel for the petitioners.
Shri Somesh Gobhuj, learned counsel for the respondent No.3.
ORDER
1. This petition under Article 227 of the Constitution of India has
been preferred by the plaintiffs/petitioners being aggrieved by the order
dated 02.05.2024 passed by the trial Court whereby their application under
Order 1 Rule 10 of the CPC has been rejected.
2. The plaintiffs have instituted an action against the defendants for
declaration that the suit land belongs to their father Madan Pagare hence
recording of defendant No.1 over the same and sale deed executed in favour
of defendant No.3 is null and void, for possession from defendant No.3 and
for permanent injunction. The defendant No.3 has contested the plaintiffs'
claim by filing his written statement in which he has stated that defendant
No.1 is the owner of the suit property and has legally sold the same in his
favour by way of a registered sale deed. A counter claim has also been laid
by him for claiming the reliefs as sought therein.
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3. During course of proceedings before the trial Court the plaintiffs
filed an application under Order 1 Rule 10 of the CPC for impleadment of
Madan Pagare as defendant No.6 to the suit submitting that recently plaintiff
No.2 acquired knowledge that he is alive. He thereafter talked to him over the
phone who stated that he shall return home shortly and that he is resident of
Shantikunj in Haridwar. He went to Haridwar for meeting him but could not
find him, report regarding which was made by him to the Police. It was
stated that since Madan Pagare is the owner of the suit land he deserves to be
impleaded as a party to the suit. The application was contested by the
defendants No.3 and 4 and has been rejected by the trial Court by the
impugned order.
4. I have considered the submissions of the learned counsel for the
parties and have perused the record.
5. The application for impleadment has been rejected by the trial
Court on the ground that no document has been filed by the plaintiffs in
support of the averments as made in the application. There is no document
on record as regards permanent or temporary address of Madan Pagare. He is
also not present in the Court. It would hence not be proper to implead him
without hearing him.
6. In the plaint itself the plaintiffs have stated that Madan Pagare is
the owner of the suit land hence defendant No.1 had no right to sell the same.
He is thus a necessary as well as a proper party to the suit. Though earlier
plaintiffs had stated that he is not traceable since 2004 but have now
categorically stated that he has been traced out and his address has also been
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located hence he deserves to be impleaded. For impleadment as a party it is
only the averments in the application which have to be considered. The proof
thereof at the present stage is not required. The plaintiffs have given a
categoric address of the proposed defendant where he can be served. They
have specifically stated that he is alive. It would be for the plaintiffs to serve
him in the suit. His impleadment could not have been rejected only on the
ground that plaintiffs have not produced any documents in support of the
averments as made by them in their application.
7. Though it has been contended by learned counsel for defendant
No.3 that sale deed was executed in favour of defendant No.3 only upon
effecting of a partition between plaintiffs and defendants 1 and 2 before the
Revenue Court in which they had stated Madan Pagare not to have been
found for quite some time but that would not have a bearing upon the present
matter since now it has been stated that he has been found. Likewise the
judgment and decree dated 26.09.2023 passed in Civil Suit No.17-A/2020 by
Third Civil Judge, Senior Division, Khargone, wherein also similar
contentions were recorded also would not be a bar for impleadment since at
that time also the proposed party was not traceable and is now stated to have
been traced. Only because earlier he was not traceable his impleadment
cannot be denied at any subsequent stage when he has been traced out.
8. The proposed party is a necessary as well as a proper party to the
suit and ought to have been impleaded. The trial Court has however erred in
rejecting the application preferred by the plaintiffs in that regard.
Consequently the impugned order dated 02.05.2024 is set aside. The
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application under Order 1 Rule 10 of the CPC preferred by plaintiffs is
allowed. However the trial Court is directed to ensure that plaintiffs serve
notice upon the proposed party by all possible means including humdust
service at the earliest so as to ensure that the proceedings of the case are not
prolonged only for the reason of effecting service upon him.
9. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
ns
