Rajasthan High Court
Shambhu Dayal Sharma Son Of Shri ... vs Devi Dayal Sharma Son Of Shri ... on 17 February, 2023
Bench: Ganesh Ram Meena
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9186/2021
Shambhu Dayal Sharma Son Of Shri Ram Avtar Sharma, Aged
About 62 Years, Resident Of Near Thakar Wala Kuan, Alwar,
Tehsil Alwar, District Alwar, Rajasthan.
----Petitioner
Versus
Devi Dayal Sharma Son Of Shri Matadeen Sharma, Resident Of
Bagar Ka Bas, Alwar, Tehsil Alwar, District Alwar, Rajasthan.
----Respondent
For Petitioner(s) : Mr. Rahul Tiwari
For Respondent(s) : Mr. Ajay Goyal
HON'BLE MR. JUSTICE GANESH RAM MEENA
Order
17/02/2023
Instant writ petition has been preferred against the order
dated 19/4/2021 passed by the Additional Civil Judge and Judicial
Magistrate No.2, Alwar in Civil Suit No. 34/204/2017 title as
Shambhu Dayal vs Devi Prasad. By the impugned order, the court
below allowed the application filed by the applicant/defendant
under Order 1 Rule 10 of CPC and ordered to implead Nagar
Parishad, Alwar as party to the suit.
Counsel for the petitioner submits that Nagar Parishad, Alwar
is neither necessary nor effected party in view of the issue
involved in the suit and the prayer made therein and Nagar
Parishad, Alwar has no role to play. He further submits that earlier
defendant moved an application for summoning some documents
from the Nagar Parishad, Alwar and the learned court below
rejected the same vide order dated 7/1/2020 and therefore now at
(2 of 3) [CW-9186/2021]
this stage, the application for impleadment of Nagar Parishad,
Alwar is not tenable. Counsel relies upon the judgment of Hon'ble
Supreme Court in the case of Sudhamayee Pattnaik and ors vs
Bibhu Prasad Sahoo reported in 2022 LiveLaw (SC) 773 decided
on 16/9/2022 to submit that no-one can be forced to join any
person to a suit proceedings filed by him.
Per contra, counsel for the respondent submits that prayer of
plaintiff-petitioner in the suit is in regard to construction made
over the public way as admitted by the plaintiff in para-3 of the
plaint. He further submits the court below has rightly appreciated
the material available on record and passed order for impleadment
of Nagar Parishad, Alwar as a party to the suit so that Nagar
Parishad, Alwar may make clear the position in regard to the
public way.
I have heard the learned counsel for the parties and perused
the material available on record.
Plaintiff applicant in his plaint made a prayer for passing a
decree as the defendants has made encroachment over the public
way of width 9 feet and 7 inches and in para 3 of plaint it is
specifically stated that dispute relates to encroachment of public
way. The defendants claims that public way is only of 3 feet and 6
inches and not over 9 feet and 7 inches as stated by the plaintiff.
Considering the dispute of width of public way, learned court
below allowed the application filed under Order 1 Rule 10 of CPC
for impleading Nagar Parishad, Alwar as party to the suit
proceedings so that proper status of public way can be placed
before the court. The court below has also observed that since the
(3 of 3) [CW-9186/2021]
dispute relates to the public way, Nagar Parishad is a proper
party.
In view of the above, order of court below does not suffer
from any illegality or perversity and therefore does not call for any
interference of this court. This court is also of the view that case
law cited by the petitioner of Suddhamayee Pattnaik (supra) is not
applicable as the issue of encroachment over public way involved
in the present case can be ascertained by Nagar Parishad, Alwar
which can place before court the correct facts for properly
adjudication of the dispute.
The writ petition is hereby dismissed.
Stay application is also dismissed.
(GANESH RAM MEENA),J
om 41
Powered by TCPDF (www.tcpdf.org)
