Madhya Pradesh High Court
Arun Kumar vs Suhag Chandra on 29 March, 2022
Author: Anand Pathak
Bench: Anand Pathak
1 W.P.No.5704/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
{HON'BLE SHRI JUSTICE ANAND PATHAK}
WRIT PETITION NO.5704/2017
Arun Kumar & Ors.
Vs.
Suhag Chandra & Anr.
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Shri Vilas Tikhe, learned counsel for the petitioners.
Shri Abhishek Singh, learned counsel for respondent No.1.
Shri G.P. Chaurasiya, learned Government Advocate for respondent
No.2/State.
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ORDER
(Delivered on 29th day of March, 2022)
1. The present petition under Article 227 of Constitution of India is preferred by the petitioners/defendants against the order dated 12-08-2017 (Annexure P/1) passed by Civil Judge Class
-I, Mungaoli District Ashoknagar whereby the application preferred by the petitioners under Order I Rule 8A read with Section 151 of CPC has been rejected.
2. It is the submission of learned counsel for the petitioners that respondent No.1 filed a suit for declaration and possession and for arrears of rent against the present petitioners on the ground of landlord tenant relationship. Pleading of rent note dated 09-12-2004 has also been made.
2 W.P.No.5704/2017
3. Petitioners/defendants filed written statement and contested the claim on the ground that shop in question is not over the land of plaintiff's ownership and no title accrue to the plaintiff. It is the pleading in the written statement taken by the petitioners as defendants that plaintiff is trying to get the possession of shop and land which was never in his title and possession and therefore, State of Madhya Pradesh is required to be impleaded as contesting defendants so that it may appear and contest the case.
4. In original plaint, plaintiff did not implead State of Madhya Pradesh as party defendant, therefore, writ petition No.940/2017 was preferred by the petitioners in which vide order dated 08-02-2017 this Court directed the petitioners to move an application for impleadment of State Government as party defendant and trial Court was directed to decide it on its own merits. Thereafter, State Government was impleaded as defendant No.4 albeit proforma defendant.
5. It appears from the submissions that petitioners moved an application under Order I Rule 8 A of CPC and prayed for impleadment of M.P. Road Development Corporation through Divisional Manager, Gwalior (hereafter referred to as "the Corporation") as party defendant because according to petitioners under the road widening, land comes under Corporation but very cleverly plaintiff filed the suit while impleading present petitioners to get the possession of 3 W.P.No.5704/2017 Government land and validate it through filing of this suit. Therefore, according to petitioners, Corporation is appropriate and necessary party.
6. It is also pleaded in the application that State of Madhya Pradesh through Collector District Ashoknagar ought to be made contesting defendant rather than proforma defendant because land belongs to State Government and therefore, it is duty of the State to protect its interest. Therefore, the application as referred above was filed before the trial Court but the trial Court rejected the application, therefore, petitioners have preferred this petition.
7. It is the submission of learned counsel for the petitioners that trial Court erred in passing the impugned order and caused illegality and arbitrariness. Petitioners moved the application in the interest of justice and not in personal interest therefore, trial Court ought to have considered ulterior motive of plaintiff by which the instant suit has been filed.
8. Learned counsel for respondent No.1 opposed the submissions and supported the impugned order while relying upon the judgment of Coordinate Bench of Gauhati High Court in the case of Umesh Ch. Das Vs. Smti. Labanya Das & Another in Civil Revision Petition No.76/2017 dated 23-06-2017 and submitted that CPC and Orders framed by Gauhati High Court do not recognize defendant differently from proforma defendant. Since defendant/State has right to examine its 4 W.P.No.5704/2017 officers as witnesses, therefore, facts can be brought before the Court. While supporting the impugned order, learned counsel for respondent No.1 prayed for dismissal of petition.
9. Shri Chaurasiya, learned Government Advocate appearing for the State of Madhya Pradesh, through Collector Ashoknagar fairly submits that as defendant No.4, State of Madhya Pradesh would represent the cause before the trial Court and Collector Ashoknagar shall ensure that appropriate presence, submissions and evidence is being led on behalf of State of Madhya Pradesh.
10. Heard learned counsel for the parties at length and perused the documents appended thereto.
11. This is a case where petitioners are seeking impleadment of Corporation as party defendant and State of Madhya Pradesh through Collector Ashoknagar as contesting defendant in the case through filing of application under Order I Rule 8 A read with Section 151 of CPC.
12. Order I Rule 8A of CPD is reproduced for ready reference:
"8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings:- While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that 5 W.P.No.5704/2017 person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify."
13. Said Rule 8A of CPC is enumerated by Act 104 of 1976 w.e.f.
01-02-1997. This provision gives sufficient leverage to the Court to implead a person or body of persons to present his or its opinion on any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons. Incidently, this power can be exercised by the Court on its own or suo motu, rather than on any application.
14. Since in the present case, State of Madhya Pradesh was impleaded later on by the order of this Court in Writ Petition No.940/2017 order dated 08-02-2017 (as per submission and record available) and allegations of present petitioners as defendants are that land belongs to State Government, therefore, interest of State is directly and substantially involved and therefore, State of Madhya Pradesh has rightly been impleaded as defendant.
15. In the present factual setup, State even if proforma defendant is entitled to file written statement and lead evidence, although surprisingly neither written statement has been filed by the State of Madhya Pradesh nor Government Counsel/Government Prosecutor/Public Prosecutor appeared in the case and trial Court in a very mechanical manner 6 W.P.No.5704/2017 proceeded ex parte against the State of Madhya Pradesh whereas Government Prosecutors (Public Prosecutors and Government Prosecutors) appear regularly in all trial Courts without any fail.
16. So far as impleadment of Corporation is concerned, it would be based upon the pleadings of State of Madhya Pradesh and if it pleads that the land in question belongs to State of Madhya Pradesh and is handed over to the Corporation for road widening then certainly Corporation would also be a necessary party. In that matter, it is duty of the State of Madhya Pradesh through Collector Ashoknagar that he should immediately appoint a Government counsel in the case and move an appropriate application for participation in the proceedings and thereafter ensure filing of written statement etc. as per law.
17. Thereafter, it would be the duty of trial Court to consider the facts and circumstances of the case in wider perspective and must see whether instant suit is being filed with a motive to get possession of the land belonging to State Government and/or to see whether it is a collusive suit by which interest of State is being compromised or not. In earlier round, trial Court acted in hyper technical and mechanical manner without trying to fathom the real intention/motive of suit and litigating parties.
18. Resultantly, petition is partly allowed and matter is remanded 7 W.P.No.5704/2017 back to the trial Court for reconsideration. It is the duty of the trial Court to look into the case and rehear the application afresh and thereafter ensure passing of appropriate order in accordance with law keeping the interest of all litigating parties including the State of Madhya Pradesh.
19. Collector, Ashoknagar is directed to immediately take interest into the instant litigation and issue appropriate direction to all Public Prosecutors/Government Prosecutors to take care of cases of State Government with utmost promptitude without showing any casualness and shall appear in the case and ensure participation in the proceedings in accordance with law.
20. Impugned order stands set aside. Petition is partially allowed and matter is remanded back for reconsideration. Parties are directed to appear on 11-05-2022 and take guidance from the trial Court for further proceedings.
21. Office is directed to immediately send copy of this order to the District Collector, Ashoknagar for information and prompt compliance.
(Anand Pathak)
Anil* Judge
ANIL KUMAR
CHAURASIYA
2022.03.29
18:36:08
-07'00'