Chattisgarh High Court
Heerasingh Sahu vs Gopal Das Hablani on 17 September, 2024
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2024:CGHC:36137
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 633 of 2021
1 - Heerasingh Sahu S/o Tulsi Ram Sahu Aged About 44 Years At Behind Sadhna Printers ,
Sanjay Colony, Balodabazar , District Balodabazar Bhatapara Chhattisgarh., District :
Balodabazar-Bhathapara, Chhattisgarh
2 - Santosh Singh Chawla S/o Kuldeep Singh Chawla Aged About 42 Years R/o Ambedkar
Chowk, Balodabazar , District Baldabazar Bhatapara Chhattisgarh.
AJAY 3 - Manjeet Singh Chawla S/o Kuldeep Singh Chawla Aged About 38 Years R/o Ambedkar
KUMAR
DWIVEDI Chowk, Balodabazar , District Baldabazar Bhatapara Chhattisgarh.
Date:
2024.09.20
... Petitioners
11:37:36
+0530
versus
1 - Gopal Das Hablani S/o Late Shri Sumarmal Hablani Aged About 58 Years At Gudiya
Readymade, In Front Of Masjid , Sadar Road, Balodabazar, District Balodabazar Bhatapara
Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh
2 - Rajni Hablani W/o Sanjay Hablani Aged About 29 Years R/o Sindhi Colony, Near New
Bus Stand , Balodabazar , District Baldabazar Bhatapara Chhattisgarh.
3 - Shobha W/o Sandeep Hablani Aged About 25 Years R/o Sindhi Colony, Near New Bus
Stand , Balodabazar , District Baldabazar Bhatapara Chhattisgarh.
4 - Pushpa Hablani W/o Gopal Hablani Aged About 55 Years R/o Sindhi Colony, Near New
Bus Stand , Balodabazar , District Baldabazar Bhatapara Chhattisgarh.
5 - Director Town And Country Planning, Rda Building , In Front Of Tehsil Office, Raipur ,
District Raipur Chhattisgarh.
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6 - Joint Director Town And Country Planning , Phool Chowk, Raipur , District Raipur
Chhattisgarh.
7 - Superintendent Of Police Balodabazar , District Balodabazar Bhatapara Chhattisgarh.
8 - Nagar Palika Parishad Through Chief Nagar Palika Officer, At Nagar Palika Parishad
Balodabazar , District Balodabazar Bhatapara Chhattisgarh.
9 - Executive Engineer Public Works Department, Civil Lines , Balodabazar , District
Balodabazar Bhatapara Chhattisgarh.
10 - State Of Chhattisgarh Through Collector, District Balodabazar Bhatapara Chhattisgarh.
... Respondents
For Petitioners : Mr. L. K. Misrha, Advocate.
For Respondents No.1 : Mr. Ravindra Sharma, Advocate.
to 4
For 5, 6, 7, 9 & : Mr. Abhishek Singh, Panel Lawyer.
10/State
SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J.
Order On Board 17.09.2024
1. This petition has been filed assailing the legality and validity of the order dated 24.08.2021 passed by the learned First Civil Judge, Class-1, Balodabazar (CG) in Civil Suit No.88A/2013, whereby, application preferred by petitioner No.1/plaintiff under Order 1 Rule 10 of the CPC for arraying proposed plaintiffs i.e. petitioner No.2 & 3 as a party in the suit, has been rejected.
2. Facts of the case are that present petitioners, respondent No.1 and other 54 persons have jointly purchased the property bearing Khasra No.846, 847/1 admeasuring area 0.058 hectare, Khasra No.846/16 admeasuring area 0.68 3/6 hectare, Khasra No.848/17 admeasuring area 0.14 hectare, Khasra No.849 admeasuring area 0.036 hectare, Khasra No.850/6 admeasuring area 0.497 hectare, total five khasra numbers admeasuring 0.0673 hectares situated at Village Balodabazar. They had purchased the said property during sale auction by State Bank of India in the name of Shri Ramesh Kedia in terms of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The sale certificate has also been issued in favour of petitioners and 54 purchasers on 05.02.2011 and got registered on 29.03.2011. The said sale deed also contained memorandum of statement to the effect that property would be used by the purchasers. Petitioner No.1 has filed a civil suit alleging that respondents No.1 to 4 by misleading the State Authorities preferred an application for construction of commercial project and started raising construction on the subject property though Special Leave to Appeal (Civil) No.30786/2011 (M/s Seth Banshidhar Ked. Rice Mil. P. L & Or Vs. State Bank of India & Ors) was pending before the Hon'ble Supreme Court wherein on 21.11.2011 a direction was issued to maintain status quo in respect of subject property. A prayer has also been made in the suit for mandatory and permanent injunction over the subject property and to remove the illegal construction already carried out by the respondents No.1 to 4 and direction to comply with conditions mentioned in memorandum of association dated 29.03.2013 in respect of 1392 sqft part of subject property. In the suit, at the stage of final arguments, petitioner No.1 preferred an application to array petitioners No.2 & 3 as a plaintiffs, however, the same has been rejected by the order impugned. Hence this petition.
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3. At the outset, learned counsel for respondents No.1 to 4 would submit that the plaintiff has filed a civil suit on the ground that respondents No.1 to 4 obtained building permission by suppressing the fact that in SLA (Civil) No.30786/2011 a direction has been made on 21.11.2011 to maintain status- quo in respect of subject property. However, respondents No.1 to 4 were not party in the said appeal before the Supreme Court. He also submits that the said appeal has already been dismissed as withdrawn on 01.11.2013. Even this petition has been filed on 17.11.2021. Therefore, since the foundation of the suit is already collapsed, nothing remains in the suit or in the petition for adjudication. He also submits that this suit has been filed mainly on the ground that status quo has been granted by the Supreme Court on 21.11.2011 which is mentioned at Para 8.4 of this petition despite the fact that said appeal has already been dismissed by the Supreme Court. He also submits that petitioners No.2 and 3 had neither moved any application before the trial Court nor raised their grievances, however, at the stage of final arguments, application for impleading them as plaintiff has been moved by petitioner No.1. Moreover, other purchasers have also not been impleaded as a party in the suit though there is no bar that one of the purchasers cannot bring a civil suit for permanent injunction. He submits that in such circumstances, when the plaintiff alone has filed a suit, there is no necessity to include other petitioners who are neither necessary nor proper party in the suit.
4. Replying to the aforesaid submission, learned counsel for the petitioner submits that he was not aware about the order dated 01.11.2013 wherein appeal filed before the Supreme Court was withdrawn. He submits that 5/6 inadvertently he could not state the said fact while drafting the petition. However, he submits that even if petitioners No.2 and 3 are arrayed as a party, no prejudice would be caused to other side and they have vested interest in the subject property. In alternative, he submits that other purchasers may also be directed to array as a party in the suit.
5. Upon putting some query to counsel for the petitioner, he submits that despite order of status quo, permission for construction of building has been granted by respondent No.8/Authority which is not justifiable. However, he admits that no stay was operating after 01.11.2013 as said appeal was withdrawn before the Supreme Court.
6. Heard learned counsel for the parties and perused the documents annexed with the petition carefully.
7. Perusal of the record would show that subject property was purchased and registered in the joint ownership which includes petitioner No.1 and 56 persons. However, the civil suit has been preferred by only petitioner No.1 for mandatory and permanent injunction as well as to remove illegal construction and to comply with memorandum of association as per sale deed. Further, the order of status quo was passed by the Supreme Court on 21.11.2011 in SLA (Civil) No.30786/2011 and ultimately the same was dismissed as withdrawn on 01.11.2013, however, this petition has been drafted after more than 8 years and there is no averment with regard to dismissal of the said appeal. Only an averment has been made with regard order of status-quo passed by the Supreme Court. Though counsel has contended that the petition has been drafted on the basis of plaint averments 6/6 and at the time of drafting the petition he has not verified status of the appeal.
8. It is well settled that one of co-owner can bring a civil suit for mandatory and permanent injunction to save the interest of other co-owners and if his rights are affected. However, in the present case, no independent application has been preferred by petitioners No.2 and 3 and application under Order 1 Rule 10 CPC has been preferred by petitioner No.1 only, that too at the time of final hearing. Moreover, though there are 57 purchasers, however, many purchasers have not been included in the suit either as plaintiff or defendant. In such backdrop, the plaintiff has failed to establish the necessity of petitioners No.2 and 3 in his civil suit.
9. For the foregoing, observation made by the trial Court in the order impugned is just and proper and same does not call for any interference by this Court invoking writ jurisdiction under Article 227 of the Constitution of India.
10. The petition fails and is hereby dismissed.
11. The stay order dated 30.11.2021 stands vacated and trial Court is directed to proceed in the matter in expeditious manner.
Sd/-
(Deepak Kumar Tiwari) Judge Ajay