Rajasthan High Court - Jodhpur
M/S. Bhagwati Stone Crusher vs Civil Judge And Judicial ... on 12 September, 2023
Bench: Nupur Bhati
[2023:RJ-JD:29113]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1958/2019
M/s. Bhagwati Stone Crusher, Daruda Grit And Chips Industry
Through Its Proprietor Shri Padam Singh S/o Rugh Singh
Resident Of Daruda, Tehsil And District Barmer.
----Petitioner
Versus
1. Civil Judge And Judicial Magistrate, Barmer.
2. Shaitan Singh S/o Shri Hari Singh,, Aged About 43 Years,
R/o Marudi, Tehsil And District Barmer.
3. District Collector, Barmer.
4. Joint Director, Animal Husbandry Department, Barmer.
5. Assistant Engineer (Rural), Jodhpur Vidhyut Vitaran
Nigam Ltd. Barmer.
----Respondents
Connected With
S.B. Civil Writ Petition No. 1583/2019
M/s. Mahadev Stone Crushing Company, Daruda Through
Balwant Singh S/o Poonam Singh Rajput By Caste Rajput R/o
Lakshmi Nagar, Barmer.
----Petitioner
Versus
1. State Of Rajasthan, District Collector, Barmer.
2. State Of Rajasthan, Through Joint Director, Department
Of Animal Husbandry, Barmer.
3. State Of Rajasthan, Through Assistant Engineer (Rural),
Jvvnl, Barmer.
4. Shaitan Singh S/o Hari Singh, By Caste Rajput R/o Village
Marudi, Tehsil And District Barmer.
----Respondents
S.B. Civil Writ Petition No. 1584/2019
M/s. Mahadev Stone Crushing Company, Daruda Through
Balwant Singh S/o Poonam Singh Rajput By Caste Rajput R/o
Lakshmi Nagar, Barmer.
----Petitioner
Versus
(Downloaded on 12/11/2023 at 05:46:37 AM)
[2023:RJ-JD:29113] (2 of 11) [CW-1958/2019]
1. State Of Rajasthan, District Collector, Barmer.
2. State Of Rajasthan, Through Joint Director, Department
Of Animal Husbandry, Barmer.
3. State Of Rajasthan, Through Assistant Engineer (Rural),
Jvvnl, Barmer.
4. Shaitan Singh S/o Hari Singh, By Caste Rajput R/o Village
Marudi, Tehsil And District Barmer.
----Respondents
For Petitioner(s) : Mr. Sharad Kothari
Mr. Alkesh Agarwal
For Respondent(s) : Mr. M.L. Khatri
Mr. D.D. Kalla
Mr. Mrigraj Singh Rathore
Mr. Mahendra Vishnoi
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
12/09/2023
1. These writ petition have been preferred by the petitioners
under Article 227 of the Constitution of India with the following
prayers:-
IN SBCWP No.1958/2019:-
"It is, therefore, humbly prayed that the Writ Petition may
kindly be allowed and by an appropriate, order or direction-
i) the impugned Order dated 18.01.2019 (Annexrue-7)
passed by Respondent No. 1 may be interfered, quashed
and set aside.
IN SBCWP No.1583/2019:-
"It is therefore respectfully prayed that writ petition filed by
the petitioner may kindly be accepted, order under
challenge dated 18.01.2019 Annexure-05 passed by the
learned trial court may kindly be quashed and set aside and
application Annexure-02 filed by the respondent-applicant
may kindly be rejected."
[2023:RJ-JD:29113] (3 of 11) [CW-1958/2019]
IN SBCWP No.1584/2019:-
"It is therefore respectfully prayed that writ petition filed by
the petitioner may kindly be accepted, order under
challenge dated 18.01.2019 Annexure-05 passed by the
learned trial court may kindly be quashed and set aside and
application Annexure-02 filed by the respondent-applicant
may kindly be rejected."
2. Since in all these cases, common questions of facts and law
are involved, therefore, these writ petitions are being decided by
this common order.
3. For sake of brevity, all the facts have been taken from the
writ petition No.1958/2019.
4. The factual matrix of the case is that the petitioners-plaintiffs
filed a suit for permanent injunction against the respondents;
District Collector, Barmer, Joint Director of Animal Husbandry
Department, Barmer, and the Assistant Engineer (Rural), Jodhpur
Vidhyut Vitaran Nigam Ltd. (hereinafter referred to as 'JVVNL'),
Barmer, before the court of Respondent No.1-Civil Judge, Barmer;
which suit came to be registered as Civil Suit Nos.101/2018,
103/2018 and 112/2018.
5. By way of the order dated 17.07.2004 passed by District
Collector, Barmer, Respondent No. 3, land admeasuring 3 bighas in
Khasra No. 299/6 (New Khasra No. 405/299) of Village Daruda
was allotted to the Petitioner-Plaintiff for the purposes of setting
an industry, on which the Petitioner established the stone crushing
business.
6. The Petitioner-Plaintiff came to receive a notice dated
28.08.2018 issued by the Joint Director, Animal Husbandry
[2023:RJ-JD:29113] (4 of 11) [CW-1958/2019]
Department, Respondent No. 4, pursuant to which it was
contended that the Petitioner has encroached on the land of the
Animal Husbandry Department, i.e.; Khasra No. 397/290 and
consequently the Petitioner-Plaintiff was asked to remove the
stone crushing business thereon. Despite Petitioner-Plaintiff's
detailed reply dated 11.09.2018, the land in question has been
allotted to the Petitioner after following due-process and on which
the Respondent Animal Husbandry Department is not claiming title
adverse to the Petitioner, thus, there was no occasion for the
Respondent No. 4 to proceed with the eviction notice. Then the
Petitioner came to receive a notice dated 04.09.2018 issued by
JVVNL, Respondent No. 5, threatening to disconnect Petitioner's
electricity connection holding the Petitioner to be trespasser on
the basis of intimation received from Respondent No. 4.
7. Thereafter, the Petitioner preferred the instant Civil Suit No.
101/2018 before the Court of Civil Judge and Judicial Magistrate,
Barmer, respondent No.1, praying for permanent injunction
against respondent No.3 to 5 from dispossessing the petitioner
from the land in question as well as from uprooting Petitioner's
stone crushing machine from the land in question.
8. The learned Trial Court vide Order dated 18.09.2018 directed
the parties to maintain status-quo. However, simultaneously, an
application under Order 1 Rule 10 of the Code of Civil Procedure,
1908 (hereinafter referred to as 'CPC') was moved by Shri Shaitan
Singh, Respondent No. 2 for impleading him as a party respondent
in the suit.
9. In response to the application filed by Shri Shaitan Singh,
Respondent No. 2, the Petitioner Plaintiff submitted a detailed
[2023:RJ-JD:29113] (5 of 11) [CW-1958/2019]
reply. The learned trial court vide order dated 18.01.2019 allowed
the application under Order 1 Rule 10 filed by the Respondent No.
2.
10. Being aggrieved by the aforesaid order dated 18.01.2019
passed by respondent No. 1-Civil Judge and Judicial Magistrate,
Barmer, the petitioner has preferred this writ petition.
11. Learned counsels for the petitioners jointly submit that the
respondent No.2, who is a complainant, is not a necessary party
to the suit below, as the petitioners have not claimed any relief
against him in the suit. Learned counsels for the petitioners also
submit that an application filed by the respondent No.2 also does
not reveal that how he is a necessary party to the suit and what
prejudice would be caused to him, if the suit below is decided
without impleading him as a party respondent. Learned counsel
for the petitioners submit that in the application filed under Order
1 Rule 10 of CPC, the respondent No.2 has misleaded while stating
that he is a resident of village Marudi and the petitioner firm has
installed the stone crushing machine at village Daruda at Khasra
No.397/289 adjoining to the land of the respondent No.2.
12. Learned counsels for the petitioners jointly submit that the
impugned order dated 18.01.2019 is not a well reasoned order, as
the learned court below without giving any finding and reasoning
in its order as to how, the respondent No.2 is a necessary party,
has allowed the application filed under Order 1 Rule 10 CPC.
13. Learned counsels for the petitioner appearing in SBCWP
Nos.1583/2019 and 1584/2019, submits that the respondent No.2
has preferred the application under Order 1 Rule 10 CPC
(Annexure-2) in order to harass the petitioner, which is evident,
[2023:RJ-JD:29113] (6 of 11) [CW-1958/2019]
as, in the title, name of the petitioner firm "M/s Mahadev Stone
Crushing Company" is mentioned. However, in the pleadings,
name of the firm has been mentioned as "M/s Bhagwati Crushers
Stone". Thus, the respondent No.2 has copied the application filed
under Order 1 Rule 10 CPC in the suit filed by M/s Bhagwati Stone
Crushers Stone and the same matter ahs been taken up by way of
filing application under Order 1 Rule 10 CPC in the suit filed by
M/s Mahadev Stone Crushing Company.
14. Learned counsel for the petitioners placed reliance upon the
catena of judgments passed by this Court to prove their case,
which are as follows:-
(1) Prabhuram and Ors. Vs. State of Rajasthan & Ors. (SBCWP
No.13632/2017).
(2) Sarfaraz S/o Ahemed Ali & Ors. Vs. State of Rajasthan &
Ors.(SBCWP No.16186/2019).
(3) Girdhari Lal Vs. Nagar Parishad & Anr. reported in (AIR
1988 Rajasthan 128).
(4) Surendra Kumar Sharma Vs. Sharad Kumar Sharma & Ors.
(SBCWP No.9124/2019).
(5) Kishan Sharma & Anr. Vs. Gram Panchayat & Ors. [(2012)
3 CivCC 670].
(6) Rajendra Kumar S/o Sohanlalji Balotiya & Ors. Vs.
Rameshchandra S/o Rupalji Kakhani & Ors. (SBCWP
No.12331/2016).
(7) Shriji Marriage Hall Vs. Civil Judge (J.D.) and Judicial
Magistrate, First Division, Sawaimadhopur & Ors. (SBCWP
No.15019/2013).
He also places reliance upon the judgment rendered by
Hon'ble Bombay High Court (Aurangabad Bench) and Hon'ble
Karnataka High Court, titled as Ramesh & Anr. Vs. Sudhakar &
Ors. reported in [(2013) 3 ALLMR 196] and M.V. Sirur S/o
V.R. Sirur Vs. Najmunnisa Begaum W/o Late Kamar
[2023:RJ-JD:29113] (7 of 11) [CW-1958/2019]
Mohammed & Ors. (Writ Petition No.373/2017),
respectively.
15. Learned counsel for the respondent No.2 submits that he is a
necessary party to the lis, as it was upon his complaint filed before
the respondents way back in the year 2005 that the appropriate
action has been taken against the petitioners. He submits that as
he is residing adjoining to the land in question where the stone
crushing machine is installed, day in and day out, he is facing
serious situation of pollution and thus, he is a necessary party to
the lis, particularly when he is a resident of the village. He also
submits that in the Site Inspection Report (Annexure-R2)
prepared by the Naib Tehsildar No.2, Barmer dated 11.07.2018, a
categorical finding has been given that two crushing units have
been installed at the site in question and therefore, the
respondent No.2 is a necessary party in order to demonstrate
before the Court that the petitioners have illegally installed the
stone crushing machines upon the government land as the
petitioners are the encroachers, who ought to be dispossessed
from the land in question.
16. In rejoinder to the submissions made by learned counsel for
the respondent No.2, the learned counsel for the petitioners,
jointly submit that the said contention of the respondent No.2 that
he has been agitated the cause before the respondents since the
year 2005, is absolutely false and frivolous, as in the application
dated 09.11.2017 filed by him under Order 1 Rule 10 CPC, he has
specifically said that it was for the first time, that the petitioner
took up the issue with the District Collector, Barmer. Learned
[2023:RJ-JD:29113] (8 of 11) [CW-1958/2019]
counsel for the petitioners also submit that the village where the
stone crushing machines have been installed, is about 10 kms
away from the village Maruda, Tehsil and District Barmer, where
the respondent No.2 is residing and thus, the contention of the
respondent No.2 that he is residing on the land adjoining to the
land in question, is absolutely misleading.
17. Heard learned counsel for the parties as well as perused the
material available on record.
18. This Court finds that a suit for permanent injunction, has
been preferred by the petitioners with specific prayers, claiming
relief against the respondents District Collector, Barmer, Joint
Director of Animal Husbandry Department, Barmer and the
Assistant Engineer (Rural), JVVNL, Barmer, restraining them from
dispossessing the petitioner from the land in question as well as
not stopping the operation of the stone crushing machines, and
that the electricity connection given in the land in question may
not be disconnected. Prayers of the suits are reproduced
hereunder:-
"SBCWP No.1958/2019:-
11. कि वादी की वाद प्रस्तुत कर निम्न अनुतोष प्राप्ति की प्रार्थना है कि
क- कि वादी के पक्ष में एवं प्रतिवादी संख्या 1 व 2 के विरूद्ध इस आश्य की स्थायी
निषे धाज्ञा पारित की जाये कि वादी फर्म के नाम से श्रीमान जिला कलेक्टर बाडमेर द्वारा
आं वटित मौजा दरूड़ा के नये खसरा नम्बर 405 / 299 रकबा 3 बीगा भूमि पर से
प्रतिवादीगण वादी को बेदखल नही ं करे उसके केशर को बन्द नही ं करावे ।
(ख) कि प्रतिवादी संख्या 3 के विरुद्ध निषेधाज्ञा जारी की जाये कि वे बादी की उक्त
आं वटित भू मि जहां पर केशर लगा हुआ है उस भू मि पर लगे विद्युत कनेक्शन को विच्छे द
नही ं करें ।
ख- इस बाद का समस्त व्यय वादी को प्रतिवादीगण से दिलवाया जाये |
ग- अन्य अनुतोष जो बाद विचारण में वादी के पक्ष में हो साबित हो सादिर फरमाये जावे ।
[2023:RJ-JD:29113] (9 of 11) [CW-1958/2019]
SBCWP No.1583/2019:-
अतः श्रीमान जी से निवेदन है कि प्रार्थी के पक्ष में एवं विप्रार्थीगण के विरूद्ध ताफैसला वाद
इस आशय की अस्थायी निषेधाज्ञा जारी की जावे कि प्रार्थी के नाम से श्रीमान जिला
कलेक्टर बाडमेर द्वारा आं वटित मौजा दरूडा के नये खसरा नम्बर 406/299 रकबा 5
बीगा भूमि पर से विप्रार्थीगण प्रार्थी को बेदखल नही ं करे उसके केशर को बन्द नही ं करावे
तथा विप्रार्थी संख्या 3 प्रार्थी की उक्त आं वटित भूमि जहां पर केशर लगा हुआ है उस भू मि
पर लगे विद्युत कनेक्शन को विच्छे द नही ं करें । शपथ पत्र साथ पेश है ।
SBCWP No.1584/2019:-
12. कि वादी की वाद प्रस्तुत कर निम्न अनुतोष प्राप्ति की प्रार्थना है कि :-
क कि वादी के पक्ष में एं व प्रतिवादी संख्या 2 व 3 के विरूद्ध इस आश्य की स्थायी
निषे धाज्ञा पारित की जावे कि वादी के नाम से श्रीमान जिला कलेक्टर बाडमेर द्वारा आं वटित
मौजा दरूडा के नये खसरा नम्बर 406/299 रकबा 5 बीमा भू मि पर से प्रतिवादीगण
वादी को बेदखल नही ं करे उसके केशर को बन्द नही ं कराने
(ख) कि प्रतिवादी संख्या 3 के विरूद्ध निषेधाज्ञा जारी की जावे कि वे वादी की उक्त
आवं टित भू मि जहां पर केशर लगा हुआ है उस भू मि पर लगे विद्युत कनेक्शन को विच्छे द
नही ं करें ।"
Thus, a bare look at the prayers reflects that the petitioners have
not claimed any relief against the respondent No.2 and therefore,
no prejudice would be caused to him if the suit is heard without
impleading him as a party respondent in the suit.
19. It is evident form the above discussion that the respondent
No.2, even though, states that the land in question belongs to the
State Government, however, wants to be impleaded as party to
the suit below, merely because he had filed complaints against the
petitioners and thus, would be in a position to demonstrate before
the court below that the petitioners are encroachers upon the land
in question, cannot be a ground to permit the respondent No.2 to
be impleaded as a party in the suit below. The said provision of
Order 1 Rule 10 CPC is reproduced hereunder:-
"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
[2023:RJ-JD:29113] (10 of 11) [CW-1958/2019]
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."
20. Thus, the aforesaid provision specifically mentions two
contingencies; one is whether the applicant ought to have been
jointed as plaintiff or defendant and is not so joined, meaning
thereby, that he is a necessary party for proper adjudication of the
suit and the other is whether without his presence, the question in
[2023:RJ-JD:29113] (11 of 11) [CW-1958/2019]
suit cannot be completely effectually adjudicated upon. Thus, this
Court finds that the respondent No.2 is neither a necessary party,
nor any relief has been claimed in the suit against him and nor his
presence is necessary for complete and effective adjudication of
the suit.
21. It is well settled principle of law that basically, it is for the
plaintiff in a suit to identify the parties against whom, he has any
grievance and to implead them as defendants in the suit filed for
necessary relief, the plaintiff cannot be compelled to face litigation
with the persons against whom, he has no grievance. The
petitioner/plaintiff being the Dominus Litis or the master of the
suit, cannot be compelled to implead respondent No.2 as a party
respondent in the suit against whom, he neither wishes to fight,
nor is claiming any relief.
22. In wake of the discussion made hereinabove, the impugned
order dated 18.01.2019 (Annexure-7), passed by respondent
No.1-Civil Judge and Judicial Magistrate, Barmer, is quashed and
set aside and the writ petitions are allowed.
23. The stay application as well as all other pending applications,
if any, also stand disposed of.
(DR. NUPUR BHATI),J
95-/Devesh Thanvi/-
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