Dalchand S/O Shri Tejsingh vs Chairman
2023 Latest Caselaw 742 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 8028/2019

1.      Dalchand S/o Shri Tejsingh, Aged About 60 Years R/o
        Tehsil Weir District, Bharatpur (Rajasthan)
2.      Sonu @ Mahendra S/o Dalchand, Aged About 39 Years,
        R/o Tehsil Weir District, Bharatpur (Rajasthan)
3.      Dilip S/o Dalchad, Aged About 37 Years, R/o Tehsil Weir
        District, Bharatpur (Rajasthan)
4.      Gauri Shankar S/o Dalchand, Aged About 27 Years, R/o
        Tehsil Weir District, Bharatpur (Rajasthan)
                                                         ----Petitioners/Plaintiffs
                                      Versus
1.      Chairman, Through Municipalities Office, Weir, District
        Bharatpur.
2.      Executive Officer, Nagarpalika, Weir, District Bharatpur.
                                          Respondent-Defendants

3. Rajesh Kumari W/o Shri Rambabu Sharma, B/c Pujari R/o Ward No. 9, Bichpuri Patti, Weir (Bharatpur)

----Respondent-applicant

For Petitioner(s) : Mr. T.C. Vyas For Respondent(s) : Mr. B.L. Dhakar Mr. Kailash Chand Katara

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 23/01/2023

Although, the matter comes up on an application No.1/2022

filed by the respondent No.3 seeking vacation of ex parte interim

order dated 08.05.2019; but, on the joint request of learned

counsels for the respective parties, the writ petition is heard on its

merit at this stage.

This writ petition under Article 227 of the Constitution of

India is directed against the order dated 07.03.2019 passed by

the learned Civil Judge, Weir, District Bharatpur whereby, an

application filed by the respondent No.3/applicant under Order 1

Rule 10 CPC is allowed.

(2 of 3) [CW-8028/2019]

The relevant facts in brief are that the petitioner-plaintiffs

filed a suit for permanent injunction against the respondents No.1

& 2/defendants with the avermetns that they were trying to

interfere in plaintiffs' use and occupation of the subject property.

During its pendency, the respondent No.3 filed an application

under Order 1 Rule 10 seeking her impleadment as defendant on

the premise that on her complaint, the respondents No.1 & 2 have

initiated proceedings for dispossession of the plaintiffs from the

subject land which is part of public way. The application has been

allowed by the learned trial Court vide order impugned dated

07.03.2019.

Learned counsel for the plaintiffs submits that they have filed

suit for permanent injunction against the illegal action of the

respondents No.1 & 2 in which the respondent No.3 is neither

necessary nor proper party. He submits that no relief has been

claimed qua the respondent No.3 and the plaintiffs being dominus

litis, cannot be compelled to litigate against a person not of their

choice. He submits that the learned trial Court erred, in the

aforesaid circumstances, to allow the application filed by the

respondent No.3. He, therefore, prays that the writ petition be

allowed, the order dated 07.03.2019 be quashed and set aside

and the application under Order 1 Rule 10 be dismissed. He, in

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

Supreme Court of India in case of Ramesh Hirachand

Kundanmal versus Municipal Corporation of Greater

Bombay & Ors.: (1992) 2 Supreme Court Cases 524 and a

Division Bench judgment of this Court in case of Brij Mohan

(3 of 3) [CW-8028/2019]

versus Civil Judge (J.D.), Chirawa & Ors.: 2007 (3) DNJ

(Raj.) 1432.

Per contra, learned counsel for the respondent No.3,

referring to para 4 of the plaint, would submit that since, action by

the respondents No.1 & 2 against the petitioners has been

initiated on her complaint, the learned trial Court did not err in

allowing her application under Order 1 Rule 10 CPC. He, therefore,

prays for dismissal of the writ petition.

Heard. Considered.

The suit filed by the plaintiffs is for permanent injunction

alleging that the respondents No.1 & 2 are trying to interfere in

their use and occupation of the subject property. It is trite law that

the plaintiffs are dominus litis and cannot be compelled to litigate

against a person against their wishes subject to provisions of

Order 1 Rule 10 (2) CPC. The suit being for permanent injunction

simplicitor, this Court is not satisfied that presence of the

respondent No.3 is necessary for just and effective disposal of the

controversy involved in the matter.

In view thereof, in the considered opinion of this court, the

learned trial Court erred in allowing the application filed by the

respondent No.3.

Accordingly, the writ petition is allowed. The order dated

07.03.2019 passed by the learned trial Court is quashed and set

aside.

Pending application stands disposed of accordingly.

(MAHENDAR KUMAR GOYAL),J

Manish/41

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