Asha Ram vs Pushkarna Brahmin Bhimji Ka ...
2021 Latest Caselaw 5283 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Misc. Application No. 82/2016 Asha Ram S/o late Shri Damodar Das, aged 76 years, R/o Sukhanand Bagechi, Sivanchi Gate, Jodhpur.

----Petitioner Versus

1. Pushkarna Brahmin Bhimji Ka Mohala Vikas Samiti, through Vice President Anand Bora S/o Shri Fateh Raj Bora, R/o Bhimji Ka Mohalla, inside Jalori Gate, Jodhpur.

2. Legal Representatives of Shri Damodar Das:-

2/1. Udai Kishan S/o Lt. Shri Damodar Das, 2/2. Mool Raj S/o Lt. Sh. Damodar Das, Both R/o Sukhanand Bagechi, Sivanchi Gate, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Muktesh Maheshwari.

For Respondent(s)        :     Mr. RSD Rajpurohit.
                               Mr. K.N. Vyas.
For Applicant (s)        :     Mr. N.R. Choudhary.


        HON'BLE MR. JUSTICE ARUN BHANSALI
                       Order
24/02/2021

Heard learned counsel for the parties on application filed by

the applicants under Order I Rule 10 CPC for being impleaded as

party respondent in S.B. Civil Misc. Application No. 82/2016 as

respondents No.2/1/1 and 2/1/2.

It is inter alia indicated that S.B. Civil Second Appeal

No.27/1994 was pending before this Court, wherein, father of the

applicants - Udai Kishan was party as respondent No.2/1 as legal

representative of Lt. Sh. Damodar Das. The said Udai Kishan died

during pendency of the said appeal on 20.4.2015, however, his

legal representatives were not brought on record and the appeal

(2 of 5) [CMAP-82/2016]

came to be decided by judgment dated 1.12.2015, whereby, the

appeal was allowed.

Whereafter, the present Civil Misc. Application No.82/2016

was filed by Asha Ram - Uncle of the applicants seeking recall of

the judgment dated 1.12.2015 passed in the second appeal. In

the said application, Udai Kishan though dead was impleaded as

respondent No.2/1.

Submissions have been made that the applicants are in

possession of the disputed premises after the death of Udai Kishan

as tenant and in the application, which has been filed seeking

recall of the judgment dated 1.12.2015, the applicants are

necessary parties and, therefore, they may be substituted as legal

representatives of deceased respondent No.2/1.

Reliance has been placed on Banwari Lal v. Balbir Singh:

2015 AIR SCW 5224.

The application is contested by learned counsel for the

respondent No.1 (in Civil Misc. Application No.82/2016) inter alia

indicating that against the judgment dated 1.12.2015, Special

Leave Petition was filed before the Hon'ble Supreme Court, in

which, the appellant therein had moved an application for

impleadment of legal representatives of deceased Udai Kishan and

had indicated six legal representatives. However, the present

application has been filed by two legal representatives only, which

is not maintainable.

Further submissions have been made that the application

filed by the applicants in the recall application under Order XXII

Rule 4 and Order XXII Rule 9 CPC, for bringing on record the legal

representatives of Lt. Udai Kishan already stands disposed of by

this Court by holding that the respondents other than respondent

(3 of 5) [CMAP-82/2016]

No.1, were merely proforma parties, and right to continue the

recall application survives against respondent No.1 and, therefore,

the applicants cannot be permitted to take a circuitous route in

now getting impleaded as party to the present application and,

therefore, the application deserves to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A perusal of the record indicates that the second appeal had

arisen out of proceedings initiated by Asha Ram alongwith one

Moolraj under Order XXI Rule 97 CPC and in the second appeal,

apparently Udai Kishan was impleaded as legal representative of

Damodar Das and/or in his individual capacity. Admittedly, said

Udai Kishan died during pendency of the second appeal, however,

his legal representatives were not brought on record and the

appeal came to be decided by order dated 1.12.2015.

In the Special Leave Petition also, insofar as, the applicant

(Asha Ram) is concerned, the application was made for

impleadment of legal representatives of Udai Kishan by indicating

Udai Kishan as proforma respondent and in view thereof, the

application as filed by the applicants in Civil Misc. Application

No.82/2016 under Order XXII Rule 4 & 9 CPC came to be decided

by this Court.

So far as the claim made by the applicants is concerned,

which pertains to their status as tenants in the suit premises,

which is governed by the decree dated 1.12.2015, regarding

which, the application for recall has been made, though they are

not necessary parties, looking to their status as claimed (tenants),

they are certainly proper parties to the present application and,

therefore, their prayer for impleadment deserves acceptance.

(4 of 5) [CMAP-82/2016]

So far as the objections raised by learned counsel for

respondent No.1 regarding non-impleadment of all the legal

representatives as indicated in the Special Leave Petition filed

before the Hon'ble Supreme Court is concerned, a perusal of the

application before Hon'ble Supreme Court (filed as Annex.R/1/2)

indicates that the same contains the name of six legal

representatives, however, as the applicants have categorically

claimed that from among the legal representatives they alone are

tenants in the subject premises, therefore, in terms of provisions

of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent &

Eviction) Act, 1950, the applicants alone would be entitled to be

joined as tenants.

So far as the issue of maintaining the application for

impleadment under Order I Rule 10 CPC after the application filed

by the applicant (Asha Ram) under Order XXII Rule 4 & 9 CPC has

been disposed of by this Court is concerned, the claim of the

applicants under Order I Rule 10 CPC is not affected only on

account of the disposal of the applications under Order XXII Rule 4

& 9 CPC filed by Asha Ram.

Consequently, the application filed by the applicants under

Order I Rule 10 is allowed. The applicants are permitted to be

impleaded as party respondents No.3 & 4 to the present

application.

Amended cause title be filed.

Office is directed to amend the online record as per amended

cause title.

Learned counsel for the respondents prays for time to

prepare on the merit of the application as he was under the

impression that the Court will hear the matter on his preliminary

(5 of 5) [CMAP-82/2016]

objections only. The impression carried on by learned counsel is

apparently without any basis.

If he has to raise any preliminary objections, he has to raise

the objections and respond to the merits of the application

simultaneously.

In view of the submissions made about the counsel being not

prepared on merits of the application today, list the application on

3rd March, 2021.

(ARUN BHANSALI),J

48-Sumit/-

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