Rajasthan High Court - Jodhpur

Smt. Rekha Kothari vs Devendra Choudhary on 4 February, 2022

Bench: Pushpendra Singh Bhati

(1 of 5) [CW-13373/2018]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13373/2018

1. Smt. Rekha Kothari W/o Shri Tarun Kothari, Aged About 52 Years, 49-B, Gali No. 6, Raati Talai, Banswara.

2. Tarun Kothari S/o Shri Pratap Singh Ji Kothari,, Aged About 53 Years, 49-B, Gali No. 6, Ratti Tali, Banswara.

----Petitioners Versus

1. Devendra Choudhary S/o Late Shri Moti Lal Ji Choudhary, 49-A, Gali No. 6, Ratti Talai, Banswara.

2. Municipal Council, Banswara Through Commissioner, Municipal Council Banswara.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Narendra Thanvi on VC
For Respondent(s)         :     Mr. Jubin Mehta on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

04/02/2022

In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, lawyers have been advised to

refrain from coming to the Courts.

The petitioner has preferred this writ petition claiming the

following relief:

"(i) quash the impugned order dated 01.06.2018 (Annex.6) passed by the learned Civil Judge, Banswara in Civil Original Suit No.6/2018; and

(ii) the impleadment application filed by the petitioners under Orde 1 Rule 10 readwith Section 151 CPC may be allowed with costs in toto; and

(iii) Any other writ or direction that may be deemed fit, just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner."

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The brief facts of the case as noticed by this Court are that

the respondent No.1 filed a civil suit for permanent injunction

alongwith the temporary injunction application against the

respondent No.2 before the learned trial Court regarding his

particular plots situated at Raati Talai, Banswara.

The bone of contention in the present case is that the

petitioner, who is the neighbour of respondent no.1 and whose

easementary rights are being affected, has filed an application for

being impleaded as party, but his application has been dismissed

by the learned trial court.

Learned counsel for the petitioner has taken this Court to

para 2 of the plaint, which is Annex.1 of the writ petition, in

which, it is stated that on 08.09.2017 & 14.09.2017, a notice has

been said to be issued, but actually no notices were received.

Learned counsel for the petitioner has thereafter drawn attention

of this Court to the said notices, which are also part of the

pleading.

Learned counsel for the petitioner further submits that the

photographs, which are on record, show that the petitioner and

respondent no.1 are immediate neighbour and serious prejudice to

the easementy right is being caused by the respondent no.1, and

therefore, the petitioners have right to contest the matter before

the learned trial court.

Learned counsel for the petitioners thereafter has taken this

Court to the complaint made by the petitioners against the

respondent no.1 on 08.12.2017. Learned counsel for the petitioner

has also shown the notices issued on 08.09.2017 & 14.09.2017.

Learned counsel for the petitioners thereafter has taken this

Court to the proceedings dated 15.02.2018 conducted by District

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Collector, Banswara whereby there is a noting upon the complaint

of the petitioners that any construction beyond permissible limits

shall not be permitted, and in case, any illegal construction is

made, the same shall be demolished.

Learned counsel for the petitioner also pointed out that the

respondent No.1, in the garb of present suit, wants to vitiate the

complaint made by the petitioners and in the interest of justice,

they may be permitted to become a party to the proceedings

below so that they can contest their rights.

Learned counsel for the petitioner has referred to the

judgment rendered by this Court in Naresh Taldar Vs.

Kalimuddin Bohra & Anr. (SBCWP No.6931/2018) decided

on 16.07.2018. Learned counsel for the petitioner has drawn

attention of this Court to the concluding paragraph of the

judgment, which reads as follows:-

"6. After hearing learned counsel for the parties and on perusing record as well as precedent law cited by the parties, this Court finds that the petitioner had made a complaint against the respondent no.1 that he is encroaching upon the public way and the petitioner being resident of the same area, was directly affected and his right of way was allegedly being infringed by the respondent no.1. The learned court below failed to appreciate that instituting a separate proceeding would unnecessarily create burden upon the system and once adjudication is happening, it should be comprehensive in nature and by merely by impleading the applicant- petitioner no injustice is going to be caused to the respondent no.1. The precedent law cited by learned counsel for the respondent no.1 is not applicable in the present case as a reading of para-15 of the judgment of

(4 of 5) [CW-13373/2018]

Jasabhai Motibhai Desai (supra), it becomes clear there is a wide jurisdiction of the courts to scrutinize and to see ambit of aggrieved person. The expression "aggrieved person" denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. The judgment of Hon'ble Apex Court in Kanaklata Das & Ors. (supra) also does not apply as it was a dispute allegedly between landlord and tenant, which is strictly between the parties and obviously neighbourhood cannot be impleded as party in those matter.

7. In the instant matter, the dispute is about a public land and the petitioner being residing in neighbourhood is directly affected as he claims to be suffering hardship due to alleged encroachment on public area of common way including that of the petitioner so he cannot be refused to be made a party as it was only on his complaint that the Municipal Council was taking action against the respondent no.1.

8. In light of the aforesaid observation, the writ petition is allowed. The impugned order dated 14.2.2018 (Annex.9) passed by the learned Additional Senior Civil Judge, Banswara in Civil Original Suit No.45/2016 and quashed and set aside and the application filed by the petitioner-applicant under Order 1 Rule 10 read with Section 151 CPC is allowed for the prayers made therein."

Learned counsel for the respondent Mr. Jubin Mehta submits

that the learned trial Court's order refusing the petitioners to

become a party is justified, as the learned trial Court has held that

the easementary rights are independent rights and in case, the

petitioners are agreed then they have liberty to pursue the same

by taking appropriate legal recourse.

(5 of 5) [CW-13373/2018]

Learned counsel for the respondent No.1 further submits that

this suit has a limited prayer which is there in the plaint and the

same prayer is only against the permission not being given by the

Municipal Corporation and the hindrance being caused by the

Municipal Corporation to enjoy his property by not giving proper