Rajasthan High Court - Jodhpur
Mohammad Arif vs Aadil Rashid on 16 October, 2025
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 19694/2025
Mohammad Arif S/o Allahnoor Gesawat, Aged About 43 Years,
R/o Opposite Chamanpura Bus Stand, Makrana, Tehsil Makrana,
District Deedwana- Kuchaman.
----Petitioner
Versus
1. Aadil Rashid S/o Late Abdul Rashid Gesawat, R/o Near
Dhaula Kuwa Masjid, Makrana At Present Residing At 1 E,
Tulip Corporate Housing Society, Flat No. 202, Patliputra
Nagar, Yogeshwari West, Mumbai, State - Maharashtra.
2. Allahnoor S/o Mohammad Hanif Gesawat, R/o Near Bus
Stand, Makrana, Tehsil Makrana, District Deedwana-
Kuchaman, State - Rajasthan.
3. Zakir Hussain S/o Mohamad Hanif Gesawat, R/o Near Bus
Stand, Makrana, Tehsil Makrana, District Deedwana-
Kuchaman State - Rajasthan, At Present Residing At
South Park B/73, 7th Floor, Plot No. 15, N.S. Road No. 10,
Juhu Scheme, Mumbai, Maharashtra.
4. Smt. Zayda W/o Late Abdul Rashid Gesawat, R/o Near
Dhaula Kuwa Masjid, Makrana At Present Residing At 1 E,
Tulip Corporate Housing Society, Flat No. 202, Patliputra
Nagar, Yogeshwari West, Mumbai, State - Maharashtra.
5. Aatif Rashid S/o Late Abdul Rashid Gesawat, R/o Near
Dhaula Kuwa Masjid, Makrana At Present Residing At 1 E,
Tulip Corporate Housing Society, Flat No. 202, Patliputra
Nagar, Yogeshwari West, Mumbai, State - Maharashtra.
6. District Collector, Deedwana - Kuchaman.
7. Commissioner, Nagar Parishad Makrana.
8. Sub - Registrar, Tehsildar, Makrana.
----Respondents
For Petitioner(s) : Mr. Abhishek Mehta
Mr. Devam Jain
Mr. Asad Sheikh
For Respondent(s) : Mr. Suniel Purohit
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HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Order
Reserved on: 09/10/2025
Pronounced on: 16/10/2025
The present writ petition has been filed by the petitioner
under Article 227 of the Constitution of India, challenging the
order dated 14.08.2025 passed by the learned Senior Civil Judge,
Makrana, District Nagaur (hereinafter reffered to as "learned trial
court"), in Civil Original Suit No. 07/2024, whereby the application
filed by the petitioner under Order I Rule 10 read with Section 151
of the Code of Civil Procedure, 1908 (hereinafter referred to as
"the CPC") has been rejected.
2. The writ petition has been preferred with the following
prayers:
"It is, therefore, most humbly and respectfully prayed that
this writ petition may kindly be allowed and -
(1) The order dated 14. 08.2025 (Annex. 5) passed by the
learned Senior Civil Judge, Makrana, District Nagaur, in Civil
Original Suit No. 07/2024, may kindly be quashed and set
aside.
(2) That the application filed by the petitioner(Annex, 2)
may kindly be allowed, and the petitioner may kindly be
directed to be impleaded as a party to the suit."
3. Briefly stated, the facts of the case are that the
respondents-plaintiffs filed a suit for partition and permanent
injunction in respect of the disputed property. The petitioner
moved an application under Order I Rule 10 read with Section 151
CPC seeking his impleadment as a party respondent on the ground
that respondent No. 3- Zakir Hussain, had gifted his share in the
said property to him. However, the learned Trial Court, upon due
consideration of the record, observed that the petitioner's claim
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over the alleged share in disputed property rests on an alleged gift
(bakhshish) from respondent No. 3, the execution of which has
been specifically denied by him in the pending proceedings before
the learned trial court. It is further observed that the validity of
the alleged gift remains sub judice, thus, the petitioner cannot be
treated as a necessary or proper party. Accordingly, the
application filed by the petitioner under Order I Rule 10 read with
Section 151 CPC was rejected.
4. Learned counsel for the petitioner submitted that the
learned Trial Court has erred in rejecting the application for
impleadment of the petitoner in the suit proceedings. It was
argued that since the respondent No. 3 had gifted his share to the
petitioner, his presence is essential for effective and complete
adjudication of the matter.
5. Per contra, learned counsel for the respondent supported
the impugned order and submitted that the petitioner has no legal
or subsisting right in the property in question. It was contended
that the alleged gift does not confer any right upon the petitioner
and that a separate suit for the same has already been filed by
him. It was further contended that the plaintiff, being dominus
litis, has the prerogative to choose the defendants in the suit. In
support of his contentions, counsel for the respondents has placed
reliance on the judgments of Apex Court in the case of
Sudhamayee Pattnik & Ors. v. Bhibhu Prasad Sahoo & Ors.,
2022 INSC 971 and of this court in the case of Satay Narayan
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Gaur v. Smt. Anjana & Ors., S.B. Civil Writ Petition No. 14266 of
2024, decided on 22.11.2024.
6. Heard learned counsel for the parties, perused the material
available on record and the judgments cited at the bar.
7. This Court finds that under Order I Rule 10 CPC, a person
can be added as a party only if his presence is necessary for the
Court to effectually and completely adjudicate upon all questions
involved in the suit. A party is considered necessary only when he
is bound by the result of the action and the issues in the suit
cannot be effectively decided in his absence.
8. The Hon'ble Supreme Court in the case of Sudhamayee
Pattnik & Ors. v. Bhibhu Prasad Sahoo & Ors. (2022 INSC
971), observed as under:
"5. .....At the outset, it is required to be noted that the
defendants in the suit filed application under Order 1
Rule 10 CPC and prayed to implead the subsequent
purchasers as party defendants. The suit is for
declaration, permanent injunction and recovery of
possession. As per the settled position of law, the
plaintiffs are the domius litis. Unless the 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 defendants against the wish of the
plaintiffs......"
9. While relying on the judgments of the Hon'ble Supreme
Court in the case of Ramesh Hiranand Kundanmal v.
Municipal Corporation of Greater Bombay (1992)2 SCC
524 and Gurmit Singh Bhatia v. Kiran Kant Robinson AIR
2019 SC 3577, a co-ordinate bench of this Court in case of
Satay Narayan Gaur v. Smt. Anjana & Ors., S.B. Civil Writ
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Petition No. 14266 of 2024, observed that a person cannot be
deemed to be a necessary party merely because he/she
possesses relevant evidence or have an interest in the subject
matter. To be a necessary party, there must exist a right to
relief against such person, and no effective decree should be
possible without his/her presence. Moreover, as per the
principle of dominus litis, a plaintiff cannot be compelled to
implead additional parties unless mandated by law.
10. Upon a careful perusal of the record and considering the
legal position settled in the aforementioned judgments, it is
evident that under Order I Rule 10 of the Code of Civil
Procedure, a person may be added as a party only if his/her
presence is indispensable for the Court to effectually and
completely adjudicate upon all the questions involved in the
suit. Further, the principle of dominus litis recognizes that the
plaintiff is the master of the suit and cannot be compelled to
implead a person against his will, except where the Court
finds such addition imperative for a just adjudication.
11. In the present matter, the petitioner's claim over the
disputed property is founded soley upon an alleged gift
(bakhshish) purportedly made by respondent No. 3- Zakir
Hussain. However, the execution of the said alleged gift has
been categorically denied by respondent No. 3 and is
presently sub judice in a separate civil proceeding. It is thus
evident that no title, right, or interest has accrued to the
petitioner on the basis of the alleged gift. Thus, the petitioner
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cannot be regarded as either a necessary or a proper party to
the present proceedings.
12. In the light of the aforesaid observations and looking
into the factual matrix of the present case, this Court finds no
illegality, perversity, or jurisdictional infirmity in the impugned
order dated 14.08.2025 passed by the learned Senior Civil
Judge, Makrana, District Nagaur while rejecting the application
of the petitioner application under Order I Rule 10 read with
Section 151 CPC.
13. Consequently, the present writ petition stands
dismissed. Pending applications, if any, also stands disposed
of.
(CHANDRA SHEKHAR SHARMA),J
131-/-
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