Himachal Pradesh High Court
Vandana vs Mani Ram on 25 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 25TH DAY OF AUGUST 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 314 OF 2020
Between:-
VANDANA
DAUGHTER OF SHRI NIKKA RAM,
RESIDENT OF VILLAGE SAI, P.O. JUGAHAN,
TESHIL SUNDER NAGAR, DISTRICT MANDI, H.P.
PRESENTLY RESIDING AT
VILLAGE BHARARI, P.O. CHAMBI,
TEHSIL SUNDER NAGAR, DISTRICT MANDI, H.P.
PETITIONER/APPLICANT
(BY MR. JAGAN NATH, ADVOCATE)
AND
1. MANI RAM
SON OF SHRI JALAM
RESIDENT OF VILLAGE SAI, P.O. JUGAHAN,
TEHSIL SUNDER NAGAR, DISTRICT MANDI, H.P.
RESPONDENT/DEFENDANT
2. GARJI
WIFE OF SHRI NIKKAR RAM,
RESIDENT OF VILLAGE SAI, P.O. JUGAHAN,
TEHSIL SUNDER NAGAR, DISTRICT MANDI, H.P.
3. KULDEEP KUMAR
SON OF SHRI NIKKA RMA,
RESIDENT OF VILLAGE SAI, P.O. JUGAHAN,
TEHSIL SUNDER NAGAR, DISTRICT MANDI, H.P.
PROFORMA-RESPONDENTS/PLAINTIFFS
(MR. VARUN RANA, ADVOCATE
FOR R-1)
(MR. AJAY SHARMA, ADVOCATE
FOR R-2 AND R-3)
This misc. petition coming on for orders this day, Hon'ble Mr. Justice
Sandeep Sharma, delivered the following:
O R D E R
::: Downloaded on - 25/08/2022 20:04:51 :::CIS
2
By way of instant petition, filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 15.7.2020, passed by learned Civil Judge, Sundernagar, Court No. (II) in CMA No. 256/20 in Civil Suit No. 51-I/19, titled Garji v. Mani Ram, whereby an .
application filed under Order I rule 10 read with S. 151 CPC having been filed by the petitioner/applicant for her impleadment as plaintiff in the suit having been filed by her mother and brother i.e. proforma respondents Nos. 2 and 3, came to be dismissed.
2. Precisely, the facts of the case, as emerge from the record, are that proforma respondents Nos. 2 and 3, filed a suit for permanent prohibitory and mandatory injunctions under Ss. 37, 38 and 39 of the Specific Reliefs Act, against respondent No.1/defendant alleging therein that they are recorded as joint owner-in-possession of land comprised in Khewat No. 169, Khatauni No. 219, Khasra Nos. 765, 774, 790, 837, 839, 845, 847, 851, 859 and 860, Kita 10, measuring 14-14-00 Bigha situate in Muhal Sai, Tehsil Sundernagar, District Mandi, Himachal Pradesh as per Jamabandi for the year 2005-06, alongwith other co-sharers Plaintiffs averred that they filed an application for partition (Khangi Takseem) of land alongwith other co-sharers, as the land stood partly portioned between the predecessors-in-interest of the plaintiff and defendant No.1 and other co-sharers fifty years back before learned Assistant Grade 1st Grade Sundernagar, who forwarded the application to Field Kanungo to implement the family arrangement but the revenue officials wrongly allotted the land which was in possession of plaintiffs to defendant and wrongly attested mutation No. 1391, dated 6.3.2009. Plaintiff further ::: Downloaded on - 25/08/2022 20:04:51 :::CIS 3 averred that being aggrieved and dissatisfied with the aforesaid order, plaintiffs alongwith present petitioner, filed an appeal before learned Collector Sub Division, Sundernagar, titled Garji and others v. Bansi and others, who vide order dated 28.7.2011, accepted the appeal and .
remanded the case back to Assistant Collector 1st Grade, Sundernagar, Himachal Pradesh to decide the same afresh. Vide order dated 16.8.2012, Assistant Collector 1st Grade, Sundernagar decided the appeal and directed the plaintiffs to file separate application for partition observing that the land will remain joint inter se parties as respondent never appeared before him. Plaintiff claimed that the defendant without getting the land partitioned, is interfering in the possession of the plaintiffs over Khasra No. 847.
3. Alongwith aforesaid suit, plaintiff filed an application under Order XXXIX rule 1 and 2 CPC, praying therein for ad interim injunction. Learned trial Court taking note of the averments contained in the application, directed the parties to maintain status quo qua nature and possession of suit property. During the pendency of the suit, applicant/petitioner, who is daughter of plaintiff No.1 filed an application under Order I, rule 10 CPC, praying therein for her impleadment (Annexure P-2). In the application, petitioner averred that she being one of the co-owners in the suit property, is a necessary party and her impleadment would enable court to adjudicate the case effectively. She alleged that since at the time of filing of suit, she was not available to sign the plaint, she could not be arrayed as plaintiff.
::: Downloaded on - 25/08/2022 20:04:51 :::CIS 4
4. Aforesaid prayer made on behalf of applicant/petitioner came to be resisted on behalf of respondent No.1, who stated that the application has been filed with ulterior motive to delay the proceedings and fill up lacunae.
5. Learned trial Court taking cognizance of averments contained in .
the pleadings adduced on record by the parties, dismissed the application on the ground that no plausible explanation has been rendered on record by the petitioner qua delay in filing the application for impleadment. Apart form above, court while dismissing the application held that since there is no material available on record to show that the petitioner is one of the co- shares in Khasra No. 847, no prejudice would be caused to her in case she is not impleaded as plaintiff. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein to set aside the impugned order and allow her application for impleadment as plaintiff in the suit pending before learned trial Court
6. Having heard learned counsel for the parties and perused material available on vis-à-vis findings returned in the impugned order by learned court below, this court finds that the application under Order I, rule 10 CPC, for impleadment came to be filed immediately after filing of reply by respondent No.1 to the application under Order XXXIX, rules 1 and 2 CPC filed by proforma respondents/plaintiffs No.2 and 3, wherein, specific objection came to be raised with regard to non-rejoinder of parties. In para 5 of reply to application (Annexure R-2) annexed with the reply filed by respondent No.1, respondent No.1 specifically stated that the applicant is challenging mutation No. 1391, dated 6.3.2009, and there are substantial ::: Downloaded on - 25/08/2022 20:04:51 :::CIS 5 issues, which cannot be decided in the absence of other co-sharers, as such, suit is bad for non-joinder of necessary parties.
7. After filing of reply to application under Order XXXIX rules 1 and 2 CPC, wherein respondent No.1 took a specific objection with regard to .
non-joinder of necessary parties, applicant/petitioner who is one of the co- sharers in the suit property, filed an application under reference, as such, it cannot be said that the application was filed belatedly. Pleadings adduced on record by the parties reveal that the respondents Nos. 2 and 3/plaintiffs alongwith other co-sharers filed an application for partition of land in terms of family arrangement arrived inter se predecessor-in- interest of the parties, before learned Assistant Grade 1st Grade Sundernagar, who forwarded the same to the Field Kanungo for implementing the family arrangement as per possession of the parties on the spot.
8. Being aggrieved with the implementation of family arrangement by the Field Kanungo, present applicant alongwith plaintiffs /respondents Nos. 2 and 3 filed an appeal before learned Collector Sub Division, Sundernagar, titled Garji and others v. Bansi and others and said authority vide order dated 28.7.2011, accepted the appeal and remanded the case back to Assistant Collector 1st Grade, Sundernagar.
9. It is ample clear from the aforesaid facts, that the applicant/petitioner is one of co-owners in the property in question and as such, she being necessary party, rightly filed an application under Order I, rule 10 CPC praying therein for her impleadment in the suit as one of the plaintiffs.
::: Downloaded on - 25/08/2022 20:04:51 :::CIS 6
10. Though the learned trial Court, while rejecting prayer made on behalf of the petitioner has recorded in the impugned order that the explanation rendered on record by the petitioner qua the delay in filing the application or not getting herself impleaded in suit at the first instance is .
not probable but plea set up by the petitioner that since at the time of filing suit, she was not available to sign the plaint, could not be brushed aside, unless some material was placed on record to prove that at the time of filing of the plaint, applicant/petitioner was present and she could have joined other plaintiffs at the initial stage. However, there is no such material on record. Leaving everything aside, respondent No.1 has specifically taken objection of non-joinder of parties in the written statement to the plaint and there is no specific denial to the effect that the applicant/petitioner is not the co-owner of the land alongwith him as well as proforma respondents/plaintiffs.
11. Be that as it may, once it is not in dispute that the pleadings are yet to be completed in the main suit and final orders on the application under Order XXXIX rules 1 and 2 CPC are to be passed by learned trial Court, no prejudice would be caused to either of the parties, in case prayer made on behalf of the petitioner for her impleadment as one of the plaintiffs in the main suit, is accepted.
12. Learned counsel for the petitioner fairly states that otherwise also, no separate plaint, if any, shall be filed by the petitioner/applicant, in the event of her being impleaded as one of the plaintiffs.
13. Since allegation with regard to forcible construction on the joint land already stand averred in the plaint having been filed by ::: Downloaded on - 25/08/2022 20:04:51 :::CIS 7 plaintiffs/proforma respondents Nos. 2 and 3, otherwise there appears to be no reason for the applicant/petitioner to file a separate plaint in the event of her being impleaded as one of the plaintiffs, especially when she is seeking her impleadment as plaintiff alongwith respondents Nos. 2 and .
3, who have categorically stated in plaint that plaint is being filed to protect the interests of the other owners including the present petitioner.
14. Consequently, in view of above, present petition is allowed and order dated 15.7.2020, passed by learned Civil Judge, Sundernagar, Court No. (II) in CMA No. 256/20 in Civil Suit No. 51-I/19, titled Garji v. Mani Ram, is quashed and set aside. Application filed by the petitioner i.e. CMA No. 256/20 is allowed and she is ordered to be impleaded as plaintiff in the main suit.
15. Learned trial Court is also directed to pass a final order on the appellation under Order XXXIX, rules 1 and 2 CPC, expeditiously, preferably within two weeks from today.
16. The petition stands disposed of in the afore terms. All pending applications also stand disposed of. Interim directions, if any, stand vacated.
(Sandeep Sharma) Judge August 25, 2022 (Vikrant) ::: Downloaded on - 25/08/2022 20:04:51 :::CIS