Rajasthan High Court - Jaipur
Girdhari Lal vs Nagar Parishad And Anr. on 21 August, 1987
Equivalent citations: AIR1988RAJ128, 1988(1)WLN68
ORDER Inder Sen Israni, J.
1. This is a revision petition under Section 115, C.P.C. against the order dt. 22-10-1981 passed by the learned Munsiff and Judicial Magistrate, Bharatpur in Civil Suit No. 36/81 accepting the application of the non-petitioner 2 for impleading him as defendant in the suit.
2. The plaintiff-petitioner filed a suit for issue of perpetual mandatory injunction against the Municipality, Bharatpur alleging therein that there was as Shanker Yyam Shalla owned and possessed by him since the time of his ancestors, in which the private deity Shivji, Bheruji, Hanumanji are situated. The Municipality, Bharatpur built a urinal in the portion of Vyam Shalla. Apart from this, the Municipality Bharatpur gave a notice to the petitioner dt. 21-1-81 asking him to demolish the room and chappal which stand in the Vyam Shalla contending that the land belongs to the Municipality. Therefore, it was prayed in the suit that a perpetual injunction-restraining the Municipality not to demolish the construction standing on the land be issued It was further prayed that a mandatory injunction be issued directing the Municipality to demolish the urinal. An application was filed by the non-petitioner 2 Babulal under Order 1, Rule 10, C.P.C, praying that he is Manager/Secretary of the aforesaid Vyam Shalla and should be made party to the suit. He further stated that the land is owned by the Municipality of Bharatpur.
3. The contention of the learned counsel Shri D. K. Soral appearing for the plaintiff is that the petitioner has filed the suit against the Municipality and has claimed no relief against the applicant/non-petitioner 2 and whatever relief has been claimed is against the Municipality and none else. It is stated that a notice was also given by the Municipality to the petitioner that he should remove his Tall'' within three days, otherwise it will be demolished by the Municipality. It is contended by the learned counsel that the trial court has acted with material irregularity in exercise of its jurisdiction as the non-petitioner 2 is neither necessary nor a proper party to the suit. The plaintiff-petitioner cannot be compelled to fight some person even when he has not claimed any relief against that person in his suit. It is also contended that the non-petitioner 2 has no interest in the land and clearly states that the land belongs to the Municipality, therefore, it is for the Municipality to fight out the suit filed by the plaintiff petitioner and the non-petitioner 2 has no interest in the same. My attention has been drawn to the case of Ramesh Chand v. Mukhtiyar Singh, 1980 Raj LW 110: (AIR 1980 Raj 21). This was a suit filed by the plaintiff for declaration that the suit property belonged to him and a sale deed made by the defendants 1 and 2 in favour of defendant 3 be declared null and void against the plaintiff. One Mohan Lal alleging himself to be the Pujari of Shri Satya Sahib Virajman Mandir, Shri Satya Sahib Kumar filed an application under Order 1 Rule 10, C. P. C for impleading Shri Satya Sahib Kumar as party to the suit on the ground that the suit property belonged to the applicant and was in possession and the plaintiff was neither owner of the suit property nor was in its possession. It was held by this court that the trial court had committed serious illegality in exercise of its jurisdiction in impleading the non-petitioner 4 as party in the present suit as the kind of controversy raised by the non-petitioner 4 would be totally foreign to the controversy in the suit between the plaintiff and the defendants. The case of Fateharaj v. Surajroop, 1969 Raj LW 215 : (AIR 1969 Raj 252) was a suit filed for declaration against the Municipality. An application was filed for impleading as party merely with the object of enabling them to see that it is properly defended. Such an application was rejected by this Court. In the matter of Mazhar Hussain v. Shafi Mohd., 1969 WLN 316. It was held that the plaintiff being generally "dominus litis" cannot be compelled to fight against some other litigation not of his own choice unless such a process was required by positive rule of law. It was held that a court has no power to join a person as party unless the court is prima facie satisfied about the plausibility of his claim. In the case of Ram Narain v. Nand Lal, 1970 Ral LW 277 it was held by this court that the Municipality was not a necessary party in a suit filed by the plaintiff against the defendant regarding encroachment of foot path approaching access of the plaintiffs shop. Shaiyad Vazir Ali v. Shaiyad Valli, 1968 Raj LW 324 was a case in which the suit was filed by one set of Khadims and Bawarchis against another set, claiming their rights in turn to receive certain income. An application was filed by Dargah Committee requesting to be pleaded as party on the allegation that the Committee alone was entitled to receive the income. However, the application of the Dargah Committee was rejected and it was observed that it may file separate suit, if it so desired.
4. Learned counsel for the non-petitioners Shri A. S. Chaturvedi, has raised a preliminary objection that this revision petition is not maintainable under the provisions of Section 115, C.P.C. as the order under revision has neither disposed of the suit finally nor would occasion a failure of justice or cause irreparable injury to the party against whom it has been made.
5. I do not find any merit in the above objection as similar revision petitions have been entertained by this court from time to time as is evident from the law cited by the learned counsel for the petitioner.
6. Shri Chaturvedi has stressed that Shanker Vyam Shala was a registered body and the applicant was its Manager/Secretary. The connection of water also stood in the name of non-petitioner Babu Lal. It was further contended that the non-petitioner 2 was a necessary party as he was in possession of the Vyam Shala and the land did not belong to the plaintiff-petitioner as given out by him in the suit, but belonged to the Municipality. It was, therefore, stressed that the plaintiff was evidently trying to grab the land of the Municipality by way of this suit filed by him. It was further contended by the learned counsel that it is necessary to implead the non-petitioner 2 as party because he shall be able to fight out the case properly and the Municipality may not take care of the suit as generally happens in such matters. In this way, it is contended that the non-petitioner 2 will suffer irreparable injury. It is also stressed that in this way there will be no multiplicity of the suit. Learned counsel has placed reliance on the case of Murlidhar v. Krishi Upaj Mandi Samiti, 1978 Raj LW 34 : (AIR 1978 Raj 48). This was a case in which the plaintiff prayed for injunction on the basis of title as well as possession. A counter claim was set up by the applicant regarding interest, right and title of the plaintiff. An issue was framed regarding investigation of the title of the plaintiff. It was, therefore, held that the applicant was rightly impleaded as a party under Order 1, Rule 10, C.P.C. This authority evidently is not applicable to the facts of the present case, in which a suit has been filed only for issue of perpetual injunction and not for any declaration regarding title of the property.
7. It is evident from the above discussion that the non-petitioner 2 even though clearly states that the land belongs to the Municipality, wants to be impleaded as party to the suit merely because he feels that he will be in position to defend the suit in better manner than the Municipality itself. This can be no ground for impleading any person as party under the provisions of Order 1, Rule 10(2), C.P.C. Order 1, Rule 10(2), C.P.C. deals with two types of cases only; one is, where the applicant ought to have been joined as plaintiff or defendant and is not so joined, meaning thereby that he is a necessary party for proper adjudication of the suit. The other is, where without his presence the question in suit cannot be completely and effectually adjudicated upon. I am of the opinion that the non-petitioner 2 is neither a necessary nora proper party. No relief has been claimed in the plaint against the non-petitioner 2 and his presence is not required for any complete or effectual adjudication of any question involved in the suit. The suit is for perpetual injunction and has been filed against the Municipality and all the reliefs claimed are also against the Municipality. I am, therefore, of the opinion that the learned trial court has acted in the exercise of its jurisdiction illegally and with material irregularity, which would occasion a failure of justice and cause irreparable injury to the petitioner.
8. In the result, the revision petition is allowed and the order of the trial court dt. 22-10-1981 is set aside. No order as to costs.