[Cites 13, Cited by 0]
Madhya Pradesh High Court
Dhananjay Jadhav S/O Late Shri Devraj ... vs Jitendra Singh Vaishya on 25 March, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:10389
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 25th OF MARCH, 2026
MISC. PETITION No. 6043 of 2024
DHANANJAY JADHAV S/O LATE SHRI DEVRAJ JADHAV
THROUGH ITS POWER OF ATTORNEY HOLDER CHANDRAJEE RAO
SAL
Versus
JITENDRA SINGH VAISHYA AND OTHERS
Appearance:
Shri N.K. Gupta- Senior Advocate assisted by Shri Shatru Daman
Singh Bhadouriya- Advocate for petitioner.
Shri Somnath Seth- Advocate for respondents No. 1 to 3 (plaintiffs).
Shri Faiz Ahmed Qureshi- Advocate for Municipal Corporation.
Shri Dileep Awasthi- Govt. Advocate for State.
ORDER
This petition under Article 227 of the Constitution of India has been
filed challenging the order dated 04.10.2024 (Annexure P-1) passed by the
15th Civil Judge, Senior Division, Gwalior, in RCS No. 695-A of 2021,
whereby the application filed by the petitioner under Order 1 Rule 10 of the
CPC was rejected.
2. A few facts giving rise to the present petition, as narrated therein,
are that the original plaintiff, Smt. Saroj, wife of Shri Jitendra Singh, filed a
suit for declaration and permanent injunction, claiming ownership and
possession of a house located at Tanki Road, Shivaji Nagar, Aam Kho
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Brigade, Lashkar, Gwalior, having a built-up area of 4,900 square feet. It was
pleaded that the property was initially acquired and constructed by Kunwar
Pal Singh, who obtained all necessary approvals and executed a registered
Will in her favour on 20th January, 2003. After Kunwar Pal Singh's death
on 25th January, 2013, the plaintiff became the sole owner and occupant of
the house. All relevant documents, including construction approvals, tax
receipts, and ownership records dating back to 1949, were produced by the
plaintiff to establish her rightful ownership. Despite this, the defendants,
including municipal officers, repeatedly challenged the plaintiff's ownership,
claiming that the property belongs to the Municipal Corporation. It was
pleaded in the plaint averments that they allegedly threatened to demolish the
house and include it in municipal land. The plaintiff sent a registered notice
on 1st July, 2021, warning the defendants not to interfere with her property,
but the defendants continued their harassment. Due to these illegal attempts
to claim and demolish the property, the plaintiff filed the present suit seeking
declaration of ownership, permanent injunction, and protection against
unauthorized interference.
3. The petitioner filed an application under Order 1 Rule 10 CPC
submitting that Survey No. 1817, measuring 12 bighas and 4 biswa in Mouza
Village Lashkar City, Gwalior, belonged to his late father, Sardar Devrao
Jadhav, whose name is recorded in the Government revenue records as
owner and occupant for the years 2007-2009. While he and his brother were
abroad, certain individuals allegedly conspired with government or
municipal officials to remove his father's name from the land records and
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illegally occupy the land. The petitioner came to know that Mrs. Saroj Bai
had filed a suit for declaration and permanent injunction regarding a part of
this land. Since he is the rightful owner and the plaintiff has no interest in the
disputed land, he contended that he is a necessary party to the suit as per the
provisions of Order 1 Rule 10 CPC, and that a proper and effective decree
cannot be passed in his absence. Therefore, he sought a direction that the
plaintiffs be directed to include him as a party to protect his legal rights in
the disputed land. The plaintiff filed a reply to this application. The trial
court, vide the impugned order dated 04.10.2024, rejected the application.
Hence, this petition.
4. It is contended on behalf of the petitioner that the original plaintiff
purchased the property by way of a sale deed, in which it is mentioned that
out of Survey No. 1817, land measuring 47 × 47 sq. ft. was purchased. The
sale deed of the year 1947 is a forged document, and the document clearly
mentions that it concerns land of Survey No. 1817. However, the trial court
did not consider this aspect. It is further contended that the plaint averments
show that the petitioner was not required to mention the fact regarding
Survey No. 1817, yet the learned trial court rejected the application without
considering the entire aspect of the matter. The petitioner is claiming relief
regarding Survey No. 1817, which is land belonging to him; therefore, he is
a necessary and proper party. Once it is mentioned that land bearing Survey
No. 1817 is part of the disputed land, and such a sale deed was never
executed by the petitioner, he becomes a necessary party. Once the sale deed
shows that Survey No. 1817 is part of the disputed land, the petitioner is a
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necessary party to the suit. The trial court did not consider this aspect while
rejecting his application. The trial court wrongly applied the principle of
dominus litis. In fact, dominus litis is not applicable in the present case
because the petitioner prima facie stated in his application that part of the
land in Survey No. 1817 belongs to him and that the sale deed is a forged
document. Any land purchased by another party out of Survey No. 1817
makes the petitioner a necessary party, and he deserves to be impleaded.
Hence, the petitioner prayed for setting aside the impugned order. Learned
counsel for the petitioner, in support of his arguments, has placed reliance on
the decision of the Coordinate Bench of this Court in Tilak Sahkari Grah
Nirman Sanstha Maryadit vs. Aqeel Ahmed and Others , reported in 2020 (1)
MPLJ 332, wherein in paragraph 19 it has been observed as under:-
Learned counsel for the petitioner has also relied upon a decision
passed in the case of Savitri Devi (supra), in which the Supreme
Court has observed as under:-
"9. Order I, Rule 10, Civil Procedure Code enables the Court
to add any person as a party at any stage of the proceedings if
the person whose presence before the Court is necessary in
order to enable the Court to effectively and completely
adjudicate upon and settle all the questions involved in the
suit. Avoidance of a multiplicity of proceedings is also one of
the objects of the said provision in the Code.10. In
Khemchand Shankar Choudhari vs. Vishnu Hari Patil, (1983)
1 SCC 18, this Court held that a transferee pendente lite of an
interest in an immovable property which is the subject-matter
of a suit is a representative in the interest of the party from
whom he has acquired that interest and has a right to be
impleaded as a party to the proceedings. The Court has taken
note of the provisions of section 52 of the Transfer of
Property Act, 1882 as well as the provisions of Rule 10 of
Order XXII, Civil Procedure Code. The Court said: (SCC p.
21, para 6)
"It may be that if he does not apply to be impleaded, he may
suffer by default on account of any order passed in the
proceedings. But if he applies to be impleaded as a party and
to be heard, he has got to be so impleaded and heard."
11. In Ramesh Hirachand Kundanmal vs. Municipal Corpn.
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of Greater Bombay, (1992) 2 SCC 524, this Court discussed
the matter at length and held that though the plaintiff is a
"dominus litis" and not bound to sue every possible adverse
claimant in the same suit, the Court may at any stage of the
suit direct addition of parties and generally it is a matter of
judicial discretion which is to be exercised in view of the
facts and circumstances of a particular case. The Court said;
(SCC p.529, para 8)
"8. The case really turns on the true construction of the rule
in particular the meaning of the words 'whose presence
before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and
settle all the questions involved in the suit'.
The Court is empowered to join a person whose presence is
necessary for the prescribed purpose and cannot under the
rule direct the addition of a person whose presence is not
necessary for that purpose. If the intervener has a cause of
action against the plaintiff relating to the subject-matter of
the existing action, the Court has power to join the intervener
so as to give effect to the primary object of the order which is
to avoid multiplicity of actions."
The Court also observed that though prevention of actions
cannot be said to be the main object of the Rule, it is a
desirable consequence of the Rule. The test for impleading
parties prescribed in Razia Begum vs. Sahebzadi Anwar
Begum, (AIR 1958 SC 886) that the person concerned must
be having a direct interest in the action was reiterated by the
Bench."
As per the view taken by the Supreme Court, it is clear that despite
the fact that the "dominus litis" lies with the plaintiff, the Court is
not bound to follow the said principle, but can exercise its
discretion at any stage of the suit directing addition of parties, if
the Court finds that without impleading the said party in the suit,
the Court would not be in a position to effectively and completely
adjudicateupon and settle all the questions involved in the suit.
Avoidance of multiplicity of proceedings is also one of the objects
of the said provision in the Code.
5. Further, learned counsel for the petitioner has placed reliance on the
decision of the Coordinate Bench of this Court in Nirmala Dharsingh
Baghela vs. Ranjit Singh Amarsingh Dhuman and Others , reported in 2000
(3) MPLJ 218, wherein in paragraphs 11, 14, and 15 it has been observed as
under:
11. Therefore, though the plaintiff is dominus litis but the Court
has the power on consideration of the facts and circumstances of
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each case, as to whether prayer regarding impleadment deserves to
be allowed under Order 1, Rule 10(2), Civil Procedure Code. Of
course, such a discretion has to be exercised judicially, as laid
down in Kamta Prasad vs. Vidyawati, 1995 MPLJ 127. It has been
held therein that, if a person is vitally interested in the litigation
and if the decree which may ultimately be passed in the said
litigation is vitally to affect his right, he may apply to be added as
a party under Order 1, Rule 10(2), Civil Procedure Code.
14. From para 13 of the plaint (Annexure A-1) it would appear
that the holders of the suit land and that they have also prayed that
their names be thereof. The respondents Nos. 6 to 9 in their
application (Annexure A-5) have recorded by respondents Nos. 4
and 5 in Municipal records, as owners his wife Prem Ben Tank,
while respondents Nos. 6 to 9 are the daughters of stated that the
plaintiffs are the children of Late Jairam Bhiji Bhai Tank from
have also inherited the suit property and have the same interest
therein as that Gomti Ben Tank, another wife of Jairam Bhijji Bhai
Tank. Therefore, they of plaintiffs.
15. Obviously, if the averments of respondents Nos. 6 to 9 as
above are established and accepted then they also would have
equal share along with the plaintiffs/petitioners in the suit property
left by their father Jairam Bhijji Bhai Tank, and consequently the
exclusive right and claim over the suit property as asserted by the
plaintiffs, would stand negatived. Therefore, for completely and
effectually deciding the controversy in the suit and before the
relief claimed by the plaintiffs/petitioners could possibly be
granted to them. it was necessary that the respondents Nos. 6 to 9
be also permitted to raise their contentions and heard in support
thereof. Therefore, the presence of effectually adjudicate upon and
to settle the questions involved in the suit. In respondents Nos. 6
to 9 appears to be necessary in order to completely and view of
above, the prayer of respondents Nos. 6 to 9 for their impleadment
was rightly allowed by the impugned order.
6. On the other hand, learned counsel for respondents No. 1 to
3/plaintiffs, supporting the impugned order, submitted that the plaintiff is
dominus litis and has discretion as to whom he or she wants to implead as a
party. The petitioner was unable to show the current position of the revenue
records in which he was mentioned as the owner of the land in dispute. In
support, learned counsel relied on the decision of the Hon'ble Apex Court in
Mumbai International Airport Private Limited vs. Regency Convention
Centre and Hotels Private Limited and Others, reported in (2010) 7 SCC 417 ,
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wherein in paragraphs 13 and 15 it has been held as under:
13. To the same effect is the decision of this Court in Umesh
Challiyill v. K.P. Rajendrans, where the Court held that even if the
respondent raised an objection in his counter-affidavit and the
appellant had despite the opportunity to cure the defect pointed out
by the respondent did not do so, yet an election petition cannot be
dismissed on the ground that the petitioner had not cured any such
defects. The petitioner was entitled to bona fide believe that the
petition is in all respects complete and if the High Court found it
otherwise it would give an opportunity to him to amend or cure the
defect. This Court also held that while dealing with election
petitions the court should not adopt a technical approach only to
dismiss the election petitions on the threshold.
15. The question whether a defect in the verification of the
pleading is fatal is also no longer res integra in the light of the
decisions in F.A. Sapa v. Singora 10 and Sardar Harcharan Singh
Brar case where this Court held that defective verification or
affidavit is curable. What consequences, if any, may flow from an
allegedly defective affidavit, is required to be judged at the trial of
an election petition but such election petition cannot be dismissed
under Section 86(1) of the Act for any such defect.
7. Further, learned counsel relied on Kanaklata Das and Others vs.
Naba Kumar Das and Others, reported in (2018) 2 SCC 352, wherein in para
18 it has been held as under:
18. We, however, make it clear that any finding whether directly
or indirectly, if recorded by the trial court touching the question of
title over the suit property, would not be binding on Respondent 1
regardless of the outcome of the suit and Respondent 1 would be
free to file an independent civil suit c against the appellants for a
declaration of his right, title and interest in the suit premises and in
any other properties, if so, and claim partition and claim petition
and separate possession of his share by metes and bounds in all
such properties.
8. Heard learned counsel for the parties. Perused the impugned order
and the documents available on record.
9. In the present case, the petitioner, in his application, submitted that
he is a necessary party because he is claiming ownership of Survey No.
1817, measuring 12 bighas and 4 biswa in Village Lashkar, Gwalior,
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whereas the plaintiffs are claiming an area of 4,900 sq. ft. in a part of the
land bearing Survey No. 1817. Upon perusal of the record, it is evident that
the plaintiffs filed the civil suit seeking declaration and permanent injunction
and specifically mentioned in the plaint that the disputed property is situated
in a part of land bearing Survey No. 1817. The original plaintiff also pleaded
that his father was the owner of the entire land bearing Survey No. 1817.
Therefore, the petitioner appears to be a necessary party, even if the principle
of dominus litis is considered. The judgments relied upon by the plaintiffs
are of no assistance in the present facts and circumstances. The trial court,
therefore, committed an error in rejecting the application moved on behalf of
the petitioner.
10. Accordingly, the impugned order deserves to be, and is hereby, set
aside. The application moved on behalf of the petitioner under Order 1 Rule
10 CPC for impleadment as a party in the suit is allowed. The trial court is
directed that, after impleadment of the petitioner as a party to the suit, it shall
proceed with the matter in accordance with law.
11. With the aforesaid, the petition stands disposed of. No order as to
costs.
(HIRDESH)
JUDGE
MKB
