Rajasthan High Court - Jaipur
Arvind Khicha And Ors vs Vardhman Shikshan Samiti And Ors on 14 July, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB Civil Writ Petition No.8868/2011 Arvind Khicha & others Vs. Vardhman Shikshan Samiti & others Date of order 14.7.2011 HON'BLE DR. MEENA V. GOMBER, J. Mr. J.P. Gupta, for petitioners
Mr. S.K. Saksena, for plaintiff-non petitioner nos.1 to 4 Mr. D.K. Garg, for defendant-non petitioner nos.5 and 6 This petition under Article 227 of the Constitution of India, is directed against the interlocutory order passed by the trial court on 1.7.2011 rejecting the application filed by the petitioners under O.1 R.10 CPC seeking impleadment in Suit no.32/11 (1/11 old no.) filed by non petitioner nos.1 to 4 against non petitioner nos.5 and 6, defendants, for permanent and mandatory injunction.
Non petitioner no.1 is a registered society under the provisions of the Rajasthan Societies Registration Act and has its own constitution and non petitioner nos.2 to 4 are its elected President, Secretary and Treasurer respectively whereas non petitioner nos.5 and 6, the defendants, were sued by non petitioner nos.1 to 4 stating that they were elected President and Secretary of non petitioner no.1 for a term of two years which came to an end on 11.4.2011 and after the term had come to an end they were supposed to have called a general body meeting for the purpose of election of managing committee. However, they did not do so and the suit had been filed by non petitioner no.1 against the erstwhile President and Secretary seeking
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injunction against them from doing any act on behalf of non petitioner no.1 and from presenting themselves as the President and Secretary of the society.
Along with the suit, an application under O.39 Rr.1 & 2 CPC was also filed. It is during the pendency of this suit, the petitioners herein above claiming themselves to be members of non petitioner no.1 society, moved an application under O.1 R.10 CPC praying for impleadment in the suit and said application of theirs, was dismissed by the learned trial court vide impugned order dated 1.7.2011. The learned trial court has observed that the petitioners herein were neither necessary nor proper parties and that nothing has been shown that for want of them the suit filed by non petitioner nos.1 to 4 against non petitioner nos.5 and 6, cannot be decided in their absence and that the application has no merit and it was dismissed. It is against this order that this petition under supervisory jurisdiction has been filed.
Admission arguments were heard.
The non petitioner nos.1 to 4 filed reply to the writ petition also and it was contended that the petitioners were neither necessary nor proper parties to the subject suit because no relief had been sought against them. It was argued that a person can only be impleaded as a party if either he is necessary or a proper party or in whose absence the controversy raised in the suit cannot be decided, whereas the petitioners' case fits in none of the three. It was submitted that no
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jurisdictional error has been committed by the learned trial court. Moreover, the impugned order was revisable order under Section 115 CPC and that the petitioners had an alternative as well as effective remedy under Section 115 CPC and, therefore, the petition was barred because of availability of alternative remedy.
Considered the arguments and also looked into the factual matrix of the case as also the pleadings of the suit in question. In my considered view the learned trial court has not committed any jurisdictional error which may warrant interference by this court in exercise of its supervisory jurisdiction because plaintiff is Dominus Litus and it is for him to decide who to add a party and who not. The courts should not normally add a party against his wishes unless the presence of the party is necessary to enable the court to completely adjudicate upon the question arising in the suit. The claim of petitioners was that they had been given membership by non petitioner nos.5 and 6 whereas as per the plaintiffs' case, their elected term of two years have come to an end on April 2011 and that they could not have acted as the President or Secretary of the society. The basic law in this regard is that when the core question involved in the suit could be decided even in absence of proposed party to be impleaded, impleadment of the applicant is not necessary. Provisions of O.1 R.10 CPC are discretionary provisions and are to be exercised in view of all the facts and circumstances of the case and in the facts and circumstances of this case, I do not find that the petitioners herein
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above were necessary or proper parties because a necessary party is one without whom no order can be effectively made and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and effective adjudication.
The mere fact that a fresh litigation can be avoided, is no ground to invoke the power under this rule, besides mere fact that decision of some issues may affect the applicant to some extent, by itself is not sufficient ground for impleadment.
Having gone through the entire record and in the facts and circumstances of the case, this court does not find any jurisdictional error, illegality or infirmity in the impugned order which may call for interference by this court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
The writ petition fails and is hereby dismissed in limine.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya P