Delhi High Court
Anil Kumar vs M/S. Gyan Dev And Sons And Another on 22 February, 1994
Equivalent citations: AIR1995DELHI43, 54(1994)DLT400, AIR 1995 DELHI 43, (1994) 54 DLT 400 (1994) 2 PUN LR 59, (1994) 2 PUN LR 59
Author: R.C. Lahoti
Bench: R.C. Lahoti
ORDER
1. This revision petition is listed today for final hearing along with a note in the cause list "No adjournment will be given in first 10 cases. Counsel are requested to be ready with their briefs."
2. As none appeared for respondents till 2.40 p.m. the learned counsel for the petitioner has been heard on merits.
ORDER
3. The plaintiff has come up in revision aggrieved by order dated 17-11-1984 passed by the trial Court ejecting an application under Order 1, Rule 10 r/w Section 151, C. P. C. filed by the plaintiff/petitioner.
4. It appears that there is a dispute between two tenants of the same property. The plaintiff/petitioner is a tenant on the first floor. The defendant is a tenant on the ground floor. The suit property is part of a Varandah situated on the first floor. The cause of action set out by the plaintiff petitioner is that the defendant comes on the 1st floor and creates obstruction in the use and enjoyment of the varandah by the plaintiff. The defendant has taken a plea in the written statement that the suit property forms part of his tenancy. Looking to the defense taken in the written statement the plaintiff/petitioner moved an application for joining the landlord as a defendant in the suit. The trial Court did not notice the landlord proposed to be joined as additional defendant on the application of the plaintiff under Order 1, Rule 10, C.P.C. It heard the defendant. The opposition offered by the defendant prevailed with the trial Court leading to rejection of the application on the reasoning that the landlord could be a witness but not a necessary party to the suit.
5. The trial Court may be right in forming opinion that the landlord was not a necessary party to the suit inasmuch as no relief was claimed against him but the trial Court failed to see that the party proposed to be joined was at least a proper party. The plaintiff is dominus lotus league in civil proceedings. In the matter of parties ordinarily the wishes of the plaintiff have to be respected. The plaintiff could have joined the landlord as a party to the suit from the very beginning if he had so desired. However, in the present case need of joining the landlord as a party to the suit became alive to the plaintiff in view of the defense raised by the tenant in his written statement. The presence of the landlord as a party to the suit would certainly assist the Court in effectually adjudicating upon the principal question arising for decision for the suit as the plea taken by the landlord in his written statement would go a long way in determining the status of the plaintiff and the present defendant qua the suit property. In the opinion of this Court the trial Court has on erroneous consideration failed to exercise the jurisdiction which was vested in it by law.
6. For the forgoing reasons the revision is allowed. The impugned order rejecting the plaintiffs application under Order 1, Rule 10, r/w Section 151, C.P.C. is set aside. The application filed by the plaintiff is allowed. Consequent to the landlord having been joined as a party to the suit, the plaintiff/petitioner shall be allowed further opportunity of amending the plaint so that he may enlarge his averments in the plaint and set out his case as regards the newly added defendant.
7. Ordered accordingly.
8. Record of the trial Court be sent back immediately. The plaintiff/petitioner is directed to appear before the trial Court on 18th March, 1994.
9. Petition allowed.