Nand Kishor vs Shivji Ram Gurjar
2023 Latest Caselaw 5148 Raj

[2023/RJJD/015650]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6192/2023

Nand Kishor S/o Shri Radheshyam Sharma, Aged About 51 Years, B/c Brahman, R/o 47 Dukiyo Ka Mandir, Village Tohod Tehsildar Rupangarh, District Ajmer Through Its Power Of Attorney Lalit Kishor Sharma, Aged About 54 Years, B/c Brahman, R/o Balaji Colony, Borvad Road, Makrana, District Nagour.

----Petitioner Versus

1. Shivji Ram Gurjar S/o Bheruram Gurjar, R/o Runeja Ka Mohalla, Ward No. 14, Navna City, Tehsil Nanva, District Nagour. (Plaintiff)

2. Tehsil Nanva, Tehsil Nanva, District Nagour Through Land Holder Government Of Rajasthan.

3. Patwari, Patwar Halka Nanva, Tehsil Nanva, District Nagour.

4. Executive Officer, Municipal Counsel, Tehsil Nanva, District Nagour.

5. District Collector, Nagour.

                                                                  ----Respondents



For Petitioner(s)          :     Mr. O.P. Boob w/o Mr. Bharat Boob
For Respondent(s)          :     Mr. Rajesh Choudhary
                                 Mr. Rajendra Katariya

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 16/05/2023 Pronounced on 24/05/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, prayed that record of the case no.1/23 titled as Shivjiram Vs Tehsildar and ors pending before Civil Judge Senior Division Nanva, District Nagour may kindly be called for and after examining the same this Hon'ble Court by an appropriate writ, order or direction quash and set aside

[2023/RJJD/015650] (2 of 11) [CW-6192/2023]

the order dated 26.04.2023 (Annx-10) and allowed the application filed by the petitioner under Order 1 Rule 10 dated 25.01.2023 (annx-8).

Any other writ, order or direction which this Hon'ble Court thinks fit in the interest of justice may kindly be passed in favour of petitioner."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that one Radhey Shyam (son of

respondent no.1-Shivji Ram Gurjar) alongwith other persons,

instituted a suit, against the petitioner & other persons, under

Sections 88, 53 & 188 of the Rajasthan Tenancy Act, 1955, before

the Sub Divisional Officer (SDO), Nawa, District Nagaur for

partition and injunction, in relation to land (situated in Revenue

Village Nawa, District Nagaur) comprising Khasra Nos. 106, 107,

and 108 - total admeasuring 2.28 hectares.

2.1. In the aforementioned suit, the respondent no.1 and other

persons had claimed, amongst others, that the lands in question

were purchased by them, from the respective recorded khatedars

thereof, vide registered sale deed dated 04.09.2013. The new

khasra nos. 2386/107, 2387/107, 2388/2386, 2389/2386 and

2390/2386 were formulated in respect of the land in question.

2.2. Vide the judgment and decree dated 14.05.2014 passed by

the learned SDO, the said suit instituted by the respondent no.1

was decreed.

2.3. The petitioner against the aforesaid judgment and decree

dated 14.05.2014 preferred an appeal before the learned Revenue

Appellate Authority (RAA), Nagaur. The learned RAA vide the

[2023/RJJD/015650] (3 of 11) [CW-6192/2023]

judgment and decree dated 03.09.2021 dismissed the appeal,

while holding the judgment and decree passed by the learned

SDO. The petitioner thereafter, preferred an appeal against the

judgment and decree passed by the learned RAA, before the

learned Board of Revenue (BOR) for Rajasthan, Ajmer. The learned

BOR vide order dated 27.10.2021, while fixing the next date i.e.

17.12.2021, in the pending appeal, had passed an interim order to

the effect of maintaining the status quo with regard to the land in

question, till that date.

2.4. During the pendency of aforesaid revenue proceeding, the

respondent no.1 filed a suit for permanent injunction before the

learned Senior Civil Judge & Additional Chief Judicial Magistrate,

Nawa City, Tehsil Nawa, District Nagaur, pertaining to the property

in question.

2.5. The petitioner came to know about the aforesaid suit then he

filed an impleadment application under Order 1 Rule 10 CPC. The

learned Civil Court below, however, vide the impugned order dated

26.04.2023, rejected the said application, while not considering

the petitioner, as a necessary party to the said suit.

2.6. Thus, aggrieved by the said order dated 26.04.2023 passed

by the learned Court below on the application under Order 1 Rule

10 CPC, the present petition has been preferred claiming the

afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the learned

Court below, before passing the impugned order, failed to consider

that in the suit filed by the respondent no.1 before the learned

Court below, he did not mention about pendency of the appeal

[2023/RJJD/015650] (4 of 11) [CW-6192/2023]

preferred by the petitioner before learned BOR, wherein the

interim order of status quo was passed on 27.10.2021; further,

despite the fact that the suit instituted by the respondent no.1

before the learned Court below was pertaining to the land in

question, the respondent no.1 deliberately did not implead the

petitioner as party defendant therein, even when, as per law, the

petitioner was a necessary party, whose impleadment was

necessary for fair and effective adjudication of the suit.

3.1. Learned counsel further submitted that the revenue

proceedings before the learned SDO, learned RAA and learned

BOR are clearly related to the old khasra no. 106, 107, and 108,

and now since the new khasra numbers, as aforementioned, were

formulated, therefore, the petitioner being a necessary party in

the suit filed by the respondent no.1 before the learned Court

below, as per Order 1 Rule 10 CPC, he ought to have been

impleaded therein.

3.2. Learned counsel also submitted that the rejection of the

impleadment application of the petitioner, vide the impugned

order, is not sustainable in the eye of law, more particularly, when

in absence of his (petitioner's) impleadment, the final and

effective adjudication of the suit is not possible.

3.3. In support of his submissions, learned counsel relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

Pankaj Kishor Shah Vs. Naresh Purushotham Khetan & Anr.

(Civil Appeal No. 2474 of 2021, decided on 12.07.2021).

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

[2023/RJJD/015650] (5 of 11) [CW-6192/2023]

on behalf of the petitioner, submitted that the respondent no.1

was not a party in appeal pending before learned BOR, and thus,

had no knowledge about the said appeal. It was further submitted

that the appeal before the learned BOR is pertaining to khasra no.

106, 107, and 108 and not related to the khasra no.2389/2386,

and therefore, both the suits pertained to the different subject

matters.

4.1. Learned counsel also submitted that the claim of the

petitioner is that old khasra numbers were converted into new

khasra numbers, but the petitioner seeking impleadment, before

the learned Court below, had not produced on record any

document to show that the Tehsildar, Nawa had drawn the note

dated 04.11.2022 (in relation to disputed khasra no.2389/2386)

regarding passing of the interim order of status quo on

27.10.2021, by the learned BOR in the pending appeal; thus, the

petitioner had no right to seek impleadment in the case,

pertaining to the disputed khasra no.2386/2389, while claiming

himself to be the necessary party in the suit before the learned

Court below.

4.2. It was also submitted that it is a settled law that in the suit,

the plaintiff is Dominus Litis, and thus, unless the concerned Court

suo motu directs to join any other person, not party to the suit,

for effective decree and/or for proper adjudication, as per Order 1

Rule 10 CPC, nobody can be permitted to be impleaded as

defendant(s) against the wish of the plaintiff. He thus submitted

that the impugned order passed by the learned Court below is

justified in law, and thus, the present petition deserves dismissal.

[2023/RJJD/015650] (6 of 11) [CW-6192/2023]

4.3. In support of their submissions, learned counsel relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

Sudhamayee Pattnaik & Ors. Vs. Bibhu Prasad Sahoo & Ors.

(Civil Appeal No.6370 of 2022, decided on 16.09.2022); and

judgment rendered by a Coordinate Bench of this Hon'ble Court,

at Jaipur Bench, in the case of Narain Lal Atal Vs. The Addl.

District Judge No.1, Jaipur City, Jaipur & Ors (S.B. Civil Writ

Petition no.2426 of 2007, decided on 03.12.2013).

5. Heard learned counsel for the parties as well as perused the

record of the case along with the judgments cited at the Bar.

6. This Court observe that the petitioner filed an application

under Order 1 Rule 10 CPC for being impleaded as party in the

suit seeking permanent injunction instituted by the respondent

no.1 before the learned Senior Civil Judge & Additional Chief

Judicial Magistrate, Nawa City; the said application was however,

rejected by the learned Court below vide the impugned order

dated 26.04.2023.

7. This Court further observes that the petitioner preferred an

appeal before the learned BOR, subject matter whereof was the

old khasra nos. 106, 107, and 108; the said appeal, as informed,

is still pending. The learned BOR on 27.10.2021 passed the

interim order to maintain the status quo with regard to the

property in question.

8. At this juncture, it is considered appropriate to reproduce the

relevant provision i.e. Order 1 Rule 10 CPC, as hereunder:

"ORDER I - Parties to Suits

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Rule 10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the 1 [Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

9. This Court also considers it appropriate to reproduce the

relevant portion of the judgment rendered by the Hon'ble Apex

Court in the case of Baluram Vs. P. Chellathangam (2015) 13

SCC 579, as hereunder:

[2023/RJJD/015650] (8 of 11) [CW-6192/2023]

"11. ........The Appellant was entitled to be impleaded as a party to safeguard his right as beneficiary of the Trust so that the Trustees did not exercise their power of alienation unreasonably. Reliance has been placed on judgment of this Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. 2010 (7) SCC 417.

.......

14. In Mumbai International Airport (supra) this Court observed:

13. The general rule in regard to impleadment of parties is that the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief Consequently, a person who is not a party has no right to be impleaded against the wishes of the Plaintiff But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub- rule is extracted below:

10. (2) Court may strike out or add parties.--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

14 The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person

[2023/RJJD/015650] (9 of 11) [CW-6192/2023]

who ought to have been joined as Plaintiff or Defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.

15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

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19. Referring to suits for specific performance, this Court in Kasturi (2005) 6 SCC 733], held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application Under Order 1 Rule 10 Code of Civil Procedure. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the Defendant vendor will not be a necessary party.

[2023/RJJD/015650] (10 of 11) [CW-6192/2023]

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22. Let us consider the scope and ambit of Order 1 Rule 10(2) Code of Civil Procedure regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the Plaintiff or the Defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a Plaintiff or as a Defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion Under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."

10. This Court further observes that in the given factual

matrix, the present petitioner clearly falls under the definition

of necessary party, as per Order 1 Rule 10 CPC, because the

old khasra numbers (subject matter of the appeal before the

learned BOR) were converted into new khasra numbers

(subject matter of suit before the learned Court below) in

respect of the same property in question, and thus, for proper

adjudication of the suit before the learned Court below, the

petitioner ought to be impleaded as a necessary party therein.

Such observation is being made while also keeping into due

consideration the fact that the interim order of status quo was

passed by the learned BOR, on 27.10.2021, in the pending

appeal, subject matter whereof were the old khasras, in

respect of the property in question.

[2023/RJJD/015650] (11 of 11) [CW-6192/2023]

11. This Court further observes that in Mumbai International

Airport (P) Ltd. v. Regency Convention Centre and Hotels (P)

Ltd. 2010 (7) SCC 417, reference whereof has been made in the

judgment rendered in Baluram (Supra), the Hon'ble Apex

Court has held that, "In exercising its judicial discretion under

Order 1 Rule 10(2) of the Code, the court will of course act

according to reason and fair play and not according to whims

and caprice." Therefore, in light of such observation of the

Hon'ble Apex Court, it was necessary to implead the present

petitioner as party in the suit filed by respondent no.1 herein,

before the learned Court below, for its final adjudication in a

fair and effective manner.

12. Thus, in view of the above, and in light of the

aforementioned precedential backdrop as also looking into the

factual matrix of the present case, this Court deems it

appropriate to allow the present petition.

13. Consequently, the present petition is allowed and while

quashing and setting aside the impugned order dated

26.04.2023 passed by the learned Court below, the petitioner

is ordered to be impleaded as party defendant in the suit filed

by the respondent no.1 before the learned Court below. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J SKant/-

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