Rajasthan High Court

Ratiram S/O Shri Gyarsilal vs Sub Divisional Officer on 16 May, 2022

Bench: Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 7159/2022

1.     Ratiram S/o Shri Gyarsilal, R/o Shyam Nagar, Tehsil
       Kotputli, District Jaipur, Rajasthan.
2.     Umrav Singh S/o Shri Gyarsilal, R/o Shyam Nagar, Tehsil
       Kotputli, District Jaipur, Rajasthan.
3.     Hansraj S/o Late Shri Deenaram, R/o Shyam Nagar, Tehsil
       Kotputli, District Jaipur, Rajasthan.
4.     Pooran S/o Late Shri Deenaram, R/o Shyam Nagar, Tehsil
       Kotputli, District Jaipur, Rajasthan.
5.     Mishri Devi W/o Late Kailash S/o Late Deenaram, R/o
       Shyam Nagar, Tehsil Kotputli, District Jaipur, Rajasthan.
6.     Sitaram S/o Late Shri Kailash S/o Late Deenaram, R/o
       Shyam Nagar, Tehsil Kotputli, District Jaipur, Rajasthan.
                                                                     ----Petitioners
                                     Versus
1.     Sub Divisional Officer, Kotputli, District Jaipur, Raj.
2.     Tehsildar, Kotputli, District Jaipur, Raj.
3.     Executive      Officer,     Municipal        Board,        Kotputli,   District
       Jaipur, Raj.
4.     State Of Rajasthan, Through District Collector, Jaipur,
       District Jaipur.
5.     Mahendra Kumar Saini S/o Shri Omkar Saini, Aged About
       50 Years, R/o Patti Wali Dhani, Village Shyam Nagar,
       Tehsil Kotputli, District Jaipur, Raj.
                                                                   ----Respondents

For Petitioner(s) : Mr. Lokendra Singh Shekhawat For Respondent(s) : Mr. Ashwinee Kumar Jaiman

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

16/05/2022

This writ petition under Article 227 of the Constitution of

India has been preferred against the order dated 23.02.2022

(2 of 5) [CW-7159/2022]

passed by learned Additional Civil Judge, Kotputli, District Jaipur in

Civil Suit No.171/2021 (07/2022) whereby, an application filed by

the respondent no.5 under Order 1 Rule 10 CPC seeking his

impleadment as defendant, has been allowed.

The facts in brief are that the petitioners/plaintiffs filed a suit

for declaration and permanent injunction against the respondents

no.1 to 4 assailing the legality and validity of the order dated

09.11.2021 passed by the Tehsildar carving out a public way

through their Khatedari land. During its pendency, the respondent

no.5 moved an application under Order 1 Rule 10 CPC seeking

impleadment on the premise that on his application, the order

impugned in the suit has been passed and he is a beneficiary of

the way. This application has been allowed by learned trial Court

vide its order dated 23.02.2022, impugned herein, 'the lis'.

The learned counsel for the plaintiff submitted that it is a lis

in between them and the official respondents whereby, action of

the respondents in creating a public way through their Khatedari

land is under challenge in which, the respondent no.5 is neither a

necessary nor, a proper party. He further submits that even

otherwise also, it does not borne from the record that the subject

order has been passed on the application filed by the respondent

no.5. He submits that the plaintiff being Dominus Litus, cannot be

compelled to litigate against a person against his wishes. He, in

support of his submissions, relies upon a judgment of Hon'ble

Apex Court of India in Mohd. Hussain Gulam Ali Shariffi vs.

Municipal Corporation of Greater Bombay & Ors.: 2016 SCC

Online SC 1887 and a coordinate Bench order of this Court dated

27.03.2012 passed in case of Tulsi Nagar Vikas Samiti Vs.

(3 of 5) [CW-7159/2022]

Bhuvneshwar Kumar Agarwal & Ors. In S.B. Civil Writ

Petition No.15956/2010.

Per contra, learned counsel for the respondent no.5,

supporting the findings recorded by learned trial Court, submitted

that since the order creating way through the Khatedari land of

the petitioners has been passed on his application and he is a

beneficiary of the aforesaid way, he is a necessary party. He,

therefore, prays for dismissal of the writ petition.

Heard. Considered.

Indisputably, the lis is in between the plaintiffs and the

official respondents wherein action of the respondents no. 1 to 4

in carving out a public way through the Khatedari land of the

petitioners is under challenge in which, the respondent no.5

appears neither to be a necessary nor, a proper party.

In case of Mohd. Hussain Gulam (supra), involving

identical controversy wherein, a notice was issued to the appellant

by the Municipal Corporation of Greater Bombay alleging

unauthorized construction of a building on a complaint made by

the respondent, who was impleaded as one of the defendants on

his application, their Lordships held as under:

"It is a settled principle of law, which does not need any authority to support the principle, that the plaintiff being a dominus litis cannot be forced to add any person as party to his suit unless it is held keeping to add any person as party to his suit unless it is held keeping in view the pleadings and the relief claimed therein that a persn sought to be added as party is a necessary party and without his presence neither the suit can proceed and nor the relief can be granted. It is only then such person can be allowed to become party, else the suit will have to be dismissed for non-impleadment of such necessary party. Such does not appear to be a case here.

(4 of 5) [CW-7159/2022]

We do not find that the presence of respondent Nos. 2 and 3 in the facts of this case is required for deciding the legality of notice impugned in the suit on merits because the dispute centers around the question of legality and validity of the notice which, as mentioned above, arises between respondent No.1, who has issued the notice, and the person to whom it is given, i.e., applicant.

In the suit in question, the Court is not called upon to adjudicate the rights between the appellant and respondents Nos. 2 and 3 in relation to the suit house. Any such dispute, if arises, the same can be decided in the separate suit, which is pending between the parties or may be filed, if required, by the parties against each other but such dispute cannot be tried on the cause of action pleaded in the present suit by the appellant where the lis is essentially between the appellant(plaintiff) and respondent No.1. Merely because the suit house is the subject matter between all the parties is no ground to get the dispute arising between the parties settled in one suit regardless of the nature of cause of action on which the suit is founded."

In case of Tulsi Nagar Vikas Samiti (supra), a coordinate

Bench has held as under:

"The counsel for the petitioner-Samiti, in my considered opinion, overlooks the fact that if the petitioner-Samiti have an enforceable right against the JDA or the respondent Nos.1 & 2, they are free to take their own proceedings such by way of filing a reference before the Appellate Tribunal if the occasion so arises under 83(8)(b) of the Act of 1982 or otherwise even approaching this Court by way of a writ petition if the Appellate Tribunal were to pass an order in favour of the respondent Nos.1 & 2 which in the estimation of the petitioner-Samiti works adversely on their rights. I am of the firm view in terms of the doctrine of dominus litus and provisions of Order 1 Rule 10 CPC, the Appellate Tribunal has committed no error in dismissing the petitioner- Samiti's application for impleadment in the appeal filed by the respondent Nos.1 & 2."

Therefore, in the facts and circumstances of the case in the

backdrop of law laid down in aforesaid judgments, this Court is of

the view that the learned trial Court erred in impleading the

respondent no.4 as one of the defendants.

(5 of 5) [CW-7159/2022]

The writ petition is allowed accordingly. The order dated

23.02.2022 passed by learned Additional Civil Judge, Kotputli is

quashed and set aside. The application filed by the respondent

no.5 under Order 1 Rule 10 CPC stands dismissed.

(MAHENDAR KUMAR GOYAL),J

LAKSHYA SHARMA /37