Madhya Pradesh High Court
Smt. Sumitra Devi vs Gourishankar Singh on 19 December, 2017
Author: Sujoy Paul
Bench: Sujoy Paul
THE HIGH COURT OF MADHYA PRADESH
WP-19278-2016
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(SMT. SUMITRA DEVI Vs GOURISHANKAR SINGH)
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Jabalpur, Dated : 19-12-2017
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HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
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Case No. W.P.No.19278/2016
Smt. Sumitra Devi and another
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vs.
Parties Name Gourishankar Singh and
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others.
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Date of Judgment 19/12/17
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Bench Constituted Justice Sujoy Paul J.
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Judgment delivered
Justice Sujoy Paul J.
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by
Whether approved
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for reporting
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Petitioners: Shri Shailendra
Verma, Adv.
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Name of counsels for Respondents No.1:Shri Ravi
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parties Shankar Singh, Power of
Attorney holder.
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Respondent No.2 : None
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Law laid down -
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Significant
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paragraph numbers (ORDER) (19.12.2017) This petition filed under Article 227 of the Constitution impugns the order dated 2.8.2016 (Annexure P/5) whereby the application preferred by the petitioners under Order 1 Rule 10 CPC is rejected by the court below. The petitioners have also challenged the order sh dated 11.11.2016 (Annexure P/9) whereby their review application and yet another application filed under Order e 14 rule 5 CPC were rejected by the court below.
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2. Learned counsel for the petitioners submits that respondent No.1/ plaintiff initially filed a civil suit in a the year 2008. The said civil suit was withdrawn hy with permission under Order 23 of CPC and a fresh ad suit was instituted in the year 2012. The present M petitioners filed the written statement on 21.10.2013. Thereafter, petitioners filed an of application under Order 1 rule 10 CPC which was rt disallowed by order dated 2.8.2016. Aggrieved, ou petitioners filed W.P.No.13408/16. This petition was withdrawn with liberty to seek a review of the C impugned order dated 2.8.2016. In turn, two h applications, namely, application under section 114 ig CPC (Annexure P/8) and application under Order 14 H rule 5 CPC dated 14.09.2016 were filed. The court below rejected both the applications on 11.11.2016. Criticizing this order, Shri Shailendra Verma, learned counsel for the petitioners contended that so far first application filed under Order 14 rule 5 CPC is concerned, the additional issues were required to be framed in view of the amendment carried out in the written statement. The court below has erred in not considering the said aspect. Hence, the order is bad in law.
3. So far the review application is concerned, sh learned counsel for the petitioners placed reliance e on various revenue entries/ document (Annexure ad P/4) and contended that the petitioners could not lay Pr their hands on said crucial documents when their application under Order 1 rule 10 CPC was initially a filed on 23.5.2016. The petitioners received the hy copies of the documents only on 4.8.2016. Thus, the ad court below should have examined the effect of M these revenue documents which shows that the land/ property in question had already been purchased of before institution of the instant suit and mutated in rt the names of such persons who were sought to be ou impleaded.. He submits that the court below has mechanically rejected the said application. C h
4. The respondent No.1 contended that issues were ig framed by the court below on 22.1.2014. While H framing issues, the parties were apprised as to why issues were framed and both the parties expressed their satisfaction and they did not raise any dispute about the issues framed. Later-on, the issues cannot be framed on mere asking. The application of the petitioners was vague and ambiguous and, therefore, the court below has not committed any error of law in rejecting the same.
5. So far the review application is concerned, the respondent No.1 contended that the parties have sh fought a long drawn battle in the corridors of the revenue courts. Certain persons wrongly got their e names mutated in the revenue record. The said ad revenue orders were assailed as per the forum Pr prescribed under the Madhya Pradesh Land Revenue Code. The matter was remitted by the authorities a hy and still a litigation is going on before the revenue court regarding such entries. Thus, on the strength ad of these entries, no right is accrued in favour of M those persons. Apart from this, the petitioners have not given details and addresses of such persons in of the application dated 23.7.2016. He fairly submits rt that if court deems it necessary that such parties are ou required to be impleaded being necessary parties, he has no objection for their impleadment. C h
6. No other point is pressed by counsel for the ig parties.
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7. I have heard the parties at length and perused the record.
8. So far first application under Order 14 rule 5 (Annexure P/7) is concerned, the petitioners made a bald statement that in view of amendment carried out in the written statement, an additional issue is required to be framed. In the considered opinion of this court the averment/ contention is too sketchy and does not throw any light as to what amendment sh was carried out. There is no whisper as to the aforesaid averment and what is the necessity to e frame the issues. Thus, in my view the court below ad has taken a plausible view that the averment are Pr vague and hence application cannot be entertained.
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9. So far the review application is concerned, the hy court below rejected it on twin grounds. Firstly, it is ad mentioned that on 2.8.2016, the court below has M taken a legal view and not committed any error apparent on the face of the record which of necessitated review application. Secondly, the rt petitioners have not produce the said document ou despite due diligence and in absence of any error apparent on the face of the record, no review can be C entertained.
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10. Before dealing with the rival contentions, it is H apposite to reproduce Order 1 rule 10 of the CPC which reads as under :-
2. â10. Suit in name of wrong plaintiffâ (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.â e sh ad
11. A plain reading of this provision makes it clear Pr that the court is empowered to direct impleadment of a party â at any stage of the suitâ. The court a can do it on application made or suo motu. The hy purpose of giving this power is â for determination ad of the real matter in disputeâ. Thus, delay, in all situations, cannot be a ground for non-impleadment.
M The court below was required to see whether the of proposed persons are necessary parties and their impleadment is necessary or not. Whether the rt documents filed by the petitioner throw any light on ou the strength of which such impleadment is necessary C ? The court below relied upon its order dated h 2.8.2016 but completely lost sight of the fact and ig when order dated 2.8.2016 was passed, the said H documents/ revenue records were not on record. These documents were filed subsequently. The basic purpose of insertion of Order 1 Rule 10 CPC is to ensure that no decree/ order is passed against a party who is a necessary party. Necessary party, is a party without hearing him a decree cannot be passed. This crucial aspect needs to be examined and gone into by the court below. In my view, the court below has mechanically rejected the review application.
12. Resultantly, the order dated 11.11.2016 sh (Annexure P/9), to the extent review application was e rejected, is set aside. Rest of the order is upheld.
ad The matter is remitted back before the court below Pr to rehear the parties on the review application and decide it afresh in accordance with law. It is made a clear that this court has not expressed any opinion hy on merits of the case. The court below shall make ad endeavour to decide the review application within M thirty days from the date of production of copy of this order.
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13. Petition is partly allowed. rt ou C (SUJOY PAUL) Digitally signed by MANOJ h KUMAR LALWANI JUDGE ig Date: 2017.12.20 17:27:35 +05'30' H MKL