Dismissed

Prakash v. Sanjeev Kumar

Himachal Pradesh HC3 Aug 2018CMPMO/347/2015

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed a petition challenging an order transposing parties from plaintiffs to defendants in a joint ownership suit under Order 1 Rule 10 CPC. The court held that the trial court correctly passed the order as the petitioners were necessary parties who chose to withdraw the suit and take no side.

What did the court decide?

The writ petition was dismissed, the interim stay was vacated, and parties were directed to appear before the trial court on 29th August, 2018.

Prakash Vs Sanjeev Kumar — Property and Title | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 347 of 2015 Date of Decision: 3.8.2018

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Prakash and Another. …Petitioners. Versus Sh.Sanjeev Kumar & others. …Respondents. Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?¹ Yes. For the Petitioners: Mr.Rajesh Verma, Advocate. For the Respondents : Mr.Bimal Gupta, Senior Advocate with Mr.Vineet Vashishta, Advocate, for respondents No. 1 to 13.

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Vivek Singh Thakur Judge (oral)

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This petition has been preferred by petitioners, who originally were plaintiffs No. 3 and 4 but now are transposed as defendants No. 11 and 12 (herein after referred to as petitionerstransposed defendants) against the impugned order dated 11.8.2015 (Annexure P-11) passed by Civil Judge (Senior Division), Court No. 1, Paonta Sahib in an application filed under Order 1 Rule 10 C.P.C. preferred by respondents No. 1 to 13 (herein after referred to as plaintiffs) for transposing petitioners herein as defendants No. 11 and 12 in the suit, whereby petitioners have been transposed as defendants No. 11 and 12 in the suit.

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Brief facts of the case are that a civil suit has been preferred by plaintiffs-respondents No. 1 to 13 along with petitioners herein (transposed defendants) against respondents No. 14 to 23 (herein after referred to as defendants) for declaration, stating therein

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Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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2 CMPMO No. 347 of 2015

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that the properties in joint ownership and possession situated in District Sirmour and District Una had been allotted to plaintiffs and defendants respectively on account of family settlement and as a result thereof plaintiffs were in possession of property in District Sirmour and defendants were enjoying property at District Una and both the parties i.e. plaintiffs and defendants were not claiming any right against each other in the properties in their respective possession i.e. plaintiffs were not claiming any right in property at Una in possession of defendants and vice versa qua property at Sirmour in possession of plaintiffs.

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During pendency of the suit, when case was listed for plaintiffs’ evidence, defendant No. 3 had expired and his legal representatives were proceeded against ex parte and suit was proceeded further. However, when the case was listed for defendants’ evidence, the legal representatives of deceased defendant No. 3 had appeared and their application for setting aside ex parte order was allowed on 2.2.2015 and thereafter they had filed fresh written statement on 25.2.2015, in response whereof transposed defendants who were plaintiffs No. 3 and 4 at that time (present petitioners) had filed separate replication, admitting the case of defendants, whereafter on asking them to clarify their stand they, petitioners-transposed defendants, (plaintiff No. 3 Parkash and plaintiff No. 4 Roshni) had withdrawn the suit on their part on 4.3.2015 and 11.3.2015 respectively, whereupon remaining plaintiffs (respondents No. 1 to 13) were constrained to file an application under Order 1 Rule 10 C.P.C. on 13.3.2015 for transposing plaintiffs No. 3 and 4 (petitioners-transposed defendants) as defendants. 4. The said application was allowed by trial Court and order

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3 CMPMO No. 347 of 2015

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passed therein was assailed before this Court by filing a petition under Article 227 of the Constitution of India bearing CMPMO No. 107 of 2015, which was disposed of without expressing opinion on merits, setting aside the impugned order on the short ground that no opportunity of hearing was afforded to the parties before passing the order, with direction to the trial Court to decide the application afresh. After giving opportunity to the parties, trial Court has passed the impugned order on 11.8.2015, which is under challenge herein.

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As stated in para 1 of the plaint (Annexure P-1), original plaintiffs (respondents No. 1 to 13 and petitioners herein) and defendants (respondents No. 14 to 23) were joint owners in possession of land situated in Mauja Tokion, Tehsil Paonta Sahib, District Sirmour, H.P. and Mauja Raipur, Patwar Circle Charatgarh, Tehsil and District Una, H.P. It is claimed in the plaint that on account of family settlement original plaintiffs and defendants are in possession of respective properties in District Sirmour and District Una, allotted to them.

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Claim of plaintiffs has been contested by defendants by filing written statement, stating therein that plaintiffs are in possession of property in Sirmour District as co-sharers and thus are trustees in possession of the share of defendants therein and therefore, defendants are to be deemed in possession as co-sharers. It is claimed that predecessor-in-interest of the plaintiffs and predecessor-in-interest of defendants were co-sharers in the land situated in district Una and predecessor-in-interest of plaintiffs, late Sh.Dheru mortgaged his undivided share, in property at Una, with one Sh.Hardev against debt and the said mortgage debt was paid by one late Sh.Jaind, predecessor-

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4 CMPMO No. 347 of 2015

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in-interest of defendants, purchasing the mortgage rights and a mutation was attested in favour of Mr.Jaind to that effect and as the predecessorin-interest of plaintiffs or plaintiffs did not redeem their share during subsistence of the mortgage, they have lost their right and interest in the property situated in District Una and their, i.e. plaintiffs’ right in the said property has extinguished with the efflux of time and defendants have become owners in possession of the share of plaintiffs in the said property.

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In view of pleadings and nature of dispute between the parties, all the co-sharers/owners in the property in dispute are definitely necessary parties for proper, complete and final adjudication of dispute with regard to ownership and possession of the said property and therefore, plaintiffs have every right to array the petitioners-transposed defendants as defendants, particularly when they have decided to take side of defendants and have taken U-turn by withdrawing the suit on their part which was filed collectively along with other remaining plaintiffs.

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Only plea of petitioners to oppose their impleadment as defendants is that they do not want to contest the suit and to participate in the litigation. It is a civil dispute and plaintiffs have ‘dominus litus’ so asn having right to determine that who has to be arrayed as defendants and as discussed above, in view of the facts and circumstances of the case, petitioners are necessary party to the suit and in case they do not intend to contest the suit or participate in the litigation in the civil suit, they are at liberty to refrain from appearing from the proceedings in suit whereupon proceedings in suit will proceed further ex parte in their

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CMPMO No. 347 of 2015

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absence, in accordance with law as prescribed. Hence I find no illegality or material irregularity or perversity in the impugned order passed by trial Court. Accordingly, present petition is dismissed. Interim stay is vacated. The parties are directed to appear before the trial Court on 29^th August, 2018 .

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Registry to transmit, copy of this order to the trial Court immediately, through Fax/email with intimation thereof.

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(Vivek Singh Thakur), 3^rd August, 2018 Judge.

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(KRS)

Prakash v. Sanjeev Kumar

Case brief

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Prakash v. Sanjeev Kumar

Case brief

What is this about?

What did the court decide?

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