Allowed

Abdul Haleem Khan v. Jabbar Mohammed

Chhattisgarh HC13 Sept 2023WP227/56/2019

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging an order of the Additional District Judge that allowed impleadment of proposed defendants. The petitioner argued no relief was sought against them, making them non-necessary parties. The High Court set aside the lower court order.

What did the court decide?

Order passed by learned trial court allowing impleadment is set aside; petition allowed.

Abdul Haleem Khan Vs Jabbar Mohammed — Property and Title | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 56 of 2019

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Abdul Haleem Khan S/o Late Abdul Hakeem Khan Aged About 67 Years Through Power of Attorney Holder Faheem Khan, S/o Shri Abdul Haleem Khan, Aged About 30 Years, R/o Akbar Khan Lane, In Front Of Mission Hospital, Bilaspur, Post Bilaspur, District Bilaspur Chhattisgarh. (Plaintiff).

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---- Petitioner

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Versus

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Jabbar Mohammed, S/o Abdul Gaffar, Aged About 68 Years, R/o Pendridih, Raipur Raod, Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh.

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Wahab Mohammed S/o Abdul Gaffar Aged About 56 Years R/o Tenganbada (Karwa), Kota, Tahsil Tengabada (Karwa), Kota, Tahsil Kota, District Bilaspur, Chhattisgarh.

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Akeel Ahmed S/o Hazi Afjal Kareem Aged About 54 Years R/ o Jarhabhata, Talapara Road, Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh.

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Firoz Ahmed S/o Hazi Afjal Kareem Aged About 46 Years R/ o Jarhabhata, Talapara, Road, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh.

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State of Chhattisgarh Through Collector, Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh.

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Ramkumar Arya S/o Rajkumar Arya Aged About 45 Years R/ o Chakarbhata Camp, Nagar Panchayat Bodri, Ward No. 8, Chakarbhata, Tahsil Bilha, District Bilaspur, Chhattisgarh. (Proposed Defendant).

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Goldi Panjwani S/o Murlidhar Panjwani Aged About 40 Years R/o Ward No. 1, Bilha, Tahsil Bilha, District Bilaspur, Chhattisgarh. (Proposed Defendant). (Defendants), District : Bilaspur, Chhattisgarh. ---- Respondents

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(Cause Title is taken from Case Information System)

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For Petitioner : Mr. Manoj Paranjpe, Advocate For Respondents No. 1 & 2 : Mr. Bharat Rajput, Advocate For Respondents No. 3 & 4 : Mr. Sourabh Sharma, Advocate

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For State/Respondent No.5 : Mr Lalit Jangde, Deputy Government Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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13.09.2023

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1. By way of this petition, the petitioner/plaintiff has challenged the order dated 08.01.2019 passed by the learned Additional District Judge, Bilaspur in Civil Suit No. 19A of 2018, whereby the application moved under Order 1 Rule 10 of the CPC by respondent Nos. 1 & 2 for impleadment of respondents No. 6 & 7 has been allowed.

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1. Facts of the present case, are that, the plaintiff instituted a suit for declaration and injunction and the declaration was sought to the effect that he is owner of land bearing survey No. 275/1, ad-measuring 0.40 dismil and 275/2 admeasuring 0.46 dismil situated at village Pendridih, Tahsil Bilha, District- Bilaspur, Chhattisgarh. Further, the relief was sought to the effect that the land in question be declared as ancestral property. The defendants No. 1 to 4 have no right of share or title over the property in question. The plaintiff also sought relief that the sale-deeds dated 14.10.1959 and 08.11.1994 be declared void ab initio .

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1. The defendants No.1 and 4 file their written statements and

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they moved an application under Order 1 Rule 10 (2) read with Section 151 of the CPC on the ground that the land bearing Survey No. 275/3 ad- measuring 0.10 acre was sold to respondent No.7/Goldy Panjwani on 16.02.2016 and respondent No.6/Ramkumar Arya is power of attorney holder of Goldy Panjawani, therefore, both are the necessary party.

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1. The said application was replied by the plaintiff and categorically stated that the land bearing Survey No.275/3 ad-measuring 0.10 acre is not a part of the suit land, the plaintiff has not sought any relief for impleading respondent No.6 and 7 as necessary party. The plaintiff being a d ominus litis , he cannot be compelled to implead any person against whom no relief has been sought.

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1. The learned trial Court on 08.01.2019 allowed the application on the ground that land bearing survey No. 275/3 is part of survey No. 275 and same was sold to proposed defendants through a sale deed dated 14.10.1959, therefore, they are necessary party.

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1. Learned counsel for the petitioner would submit that the petitioner/plaintiff never sought relief against the proposed defendants, therefore, the Court below has committed error

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of law in allowing the application moved by the defendant number one and two under order 1 Rule 10 of the CPC. He would submit that plaintiff is a Dominus litis, and he cannot be compelled to implead the party against whom no relief has been sought. He would also submit that in absence of the proposed defendants, the decree can be passed by the trial Court. Thus, he would pray to set-aside the order impunged.

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1. On the other hand, counsel for the respondents would oppose the submission made by the counsel for the petitioner and they would jointly submit that the learned trial Court has passed well reasoned order and it does not require any interference by this Court.

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1. I have heard learned counsel for the parties and perused the documents.

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1. From perusal of the content of plaint, it appears that the plaintiff has not sought any relief against the proposed defendants.

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10) The Order 1 Rule 10 of the CPC reads as under :-

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“10. Suit in name of wrong plaintiff.—

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(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 through a bona fide mistake, and that it is necessary

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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.

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(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

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(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

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(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant

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(5) Subject to the provisions of the 1[Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

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[10A. Power of Court to request any pleader to address it.— The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]”

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11) The Hon’ble Supreme Court in the matter of Mumbai

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International Airport Pvt. Ltd. Vs. Regency Convention

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Centre & Hotels Pvt. Ltd. & Ors. reported in (2010) 7 SCC

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417 in para-13 and 15 held as under:-

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13.The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

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"Court may strike out or add parties.

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(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be

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necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

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15.A necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

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12) In the matter of Kanaklata Das and others v. Naba Kumar Das and others reported in (2018) 2 SCC 352, wherein the Hon’ble Supreme Court observed in para-11.4 which reads

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as under:-

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“11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty vs. Sudha Rani Banerjee & Anr., 2005(8) SCC 140) ”

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13) Considering the facts of the present case in light of the judgments discussed above, it is evident that the proposed defendants are not necessary parties. The plaintiff has not sought any relief in the plaint against the proposed defendants. The plaintiff, being the dominus litis , cannot be

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compelled to add any third party in the suit, whether as a plaintiff or a defendant, against his will, unless the third party can establish his necessity to the suit. Therefore, the order passed by the learned trial court is legally unsustainable and

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is hereby set aside. Consequently, the petition is allowed .

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14) Taking into consideration the fact that the civil suit is pending since 2018, the learned trial court is requested to make all endevour to conclude the proceedings of the civil suit, preferably within a period of six months.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Nadim

Abdul Haleem Khan v. Jabbar Mohammed

Case brief

What is this about?

What did the court decide?

Abdul Haleem Khan v. Jabbar Mohammed

Case brief

What is this about?

What did the court decide?

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