Rajasthan High Court - Jaipur
Kishan Sharma And Anr vs Gram Panchayat Niwaru &Ors on 5 January, 2012
S.B. Civil Writ Petition No.11308/2009 Kishan Sharma & Anr. Vs. Gram Panchayat, Niwaru & Ors. Dated :05.01.2012 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Sudesh Bansal, for the petitioners. Mr.Rizwan Ahmed for respondent No.1. Mr. Mahendra Joshi, for the respondents.
*** By way of the instant writ petition, the petitioners have beseeched to quash and set aside the order dated 18th July, 2009 whereby the learned Civil Judge (Jr.Div.) Jaipur District, Jaipur allowed the application of the respondent Nos. 2 & 3 filed under Order 1 Rule 10 of CPC impleading them to be party defendants in the suit.
2. The petitioners are found to have filed the suit against the Gram Panchayat, Niwaru on 22nd December, 2008 for mandatory injunction. During the pendency of the suit, the respondents-applicant Nos.2 & 3 filed the afore-stated application under Order 1 Rule 10 of CPC for impleading them to be party defendants in the suit. The application was allowed by the learned trial Court, hence, the petitioners have invoked the extra ordinary jurisdiction under Article 227 of the Constitution.
3. Learned counsel for the petitioners canvassed that they had been in possession in the plot in question and they had already requested the respondent-defendant No.1-Gram Panchayat Niwaru to issue a patta in their favour. The petitioners also sought the relief, apart issuing direction to Gram Panchayat Niwaru, to issue a patta, to restrain other persons also from making any encroachment upon the land in question.
4. Learned counsel further canvassed that the respondent Nos. 2 & 3 had already filed a separate suit with regard to the same land and in that suit the petitioners were not a party. Since the petitioners have not sought any relief against the respondent Nos.2 & 3, they could not be impleaded as a party in the suit as their appearance was not required for adjudication of the suit for mandatory and permanent injunction. The learned trial Court allowed the application of respondent nos. 2 & 3 on the ground that they were the necessary party and for deciding the suit of the petitioners, depriving the presence of the respondent Nos.2 & 3 shall be against the principles of natural justice. The impugned order, thus, is capricious and against the provisions of law, hence, the same deserves to be set aside.
5. E-converso, the learned counsel for the respondent Nos.2 & 3 defended the impugned order and stated the same to be just and proper and contended that it did not warrant any intervention.
6. Learned counsel appearing for respondent No.1-Gram Panchayat Niwaru submitted that both the parties were claiming their possession over the disputed land and both the parties were asking for issuing a patta in their favour. Both the parties have filed separate suits for issuing permanent injunction. He further canvassed that in such a situation when the subject matter of the suit is one piece of land and both the parties have been claiming their possession thereon, both the suits may be ordered to be amalgamated and the Court may be directed to decide them together.
7. Having reflected over the submissions made at the bar and carefully scanned the relevant material including the provisions of law, it is to be noticed that the petitioners-plaintiffs have not sought any relief against the respondent Nos.2 & 3. Undeniably and undisputedly, it is a suit for permanent and mandatory injunction. The rights of the respondent Nos.2 & 3 do not get, in any way, affected and in such a situation, both the respondent Nos.2 & 3 are not found to be a necessary or a proper party. The Hon'ble Apex Court has consistently held in plethora of cases and made a distinction between necessary party and proper party in the following terms;
A necessary party is one without whose presence, no effective decree or order can be passed. A proper party is one in whose presence a decree or order can be made, but whose presence is necessary for complete, final and effective adjudication of all issues involved in the suit. In other words, a necessary party is a party, who ought to have been joined as a party; and a prper party is a party, who should be joined as a party for convenience or expediency.
8. It is a settled proposition of law that the plaintiff is dominus litis and normally it is for him to select his adversory from whom he seeks relief and it was not for a court to ask him to join any other person as a party to the suit. It is not a province of a court of law to interfere with that right. If plaintiff does not join the necessary or proper party, consequences will ensue and he will suffer. It is not a matter for the Court to worry about. Viewed from this angle, in the case of a permanent and mandatory injunction, the respondent Nos. 2 & 3 are not found to be a necessary party or a proper party in the instant case, as the petitioners are found not to have sought any relief against them. Both the parties have been claiming possession over the disputed land and both the parties have filed separate suits relating to one subject matter. The respondent Nos. 2 & 3 are found to have filed a suit way back in the year 2004 and in that suit the plaintiff did not endeavour to implead the petitioners as a party defendant, whereas, in the instant case, when the suit is found to have been filed for permanent and mandatory injunction, the respondent Nos.2 & 3 have been allowed to be impleaded as a party, by the learned trial Court. The approach of the learned trial should be inconformity with the provisions of law. The order is found to be arbitrary, capricious and the same being not found to be apt, deserves to be set aside.
9. For the reasons stated above, the writ petition is allowed and the impugned order dated 18th July, 2009 stands set aside.
10. However, keeping in view the submissions made by the learned counsel for both the parties as also the learned counsel for respondent No.1-Gram Panchayat, Niwaru, both the suits No.54/2005 titled as Shravan Lal & Another Vs. Gram Panchayat, Niwaru pending in the Court of Additional Civil Judge (J.D.) No.2, Jaipur District, Jaipur and suit No.2/2009 titled as Shri Kishan Sharma and another vs. Gram Panchayat, Niwaru pending in the Court of Civil Judge(J.D.) Jaipur District, Jaipur are ordered to be tried together by one Court i.e the Court of Civil Judge (J.D.), Jaipur District, Jaipur.
11. Hence, the learned District Judge, Jaipur District, Jaipur is directed to pass a necessary order with regard to transfer of the suit No.54/2005 pending in the Court of Additional Civil Judge (J.D.) No.2, Jaipur District, Jaipur, to the Court of Civil Judge(J.D.) Jaipur District, Jaipur. Both the suits, wherein the subject matter is the same, may be tried together and decide accordingly in accordance with law.
(MAHESH BHAGWATI),J.
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