Allowed

Sri Thakur Navaneet Priyajee @ v. Lakhendar Bhagat and Anr.

Patna HC15 Oct 2012CWJC/17711/2011

Case brief

AI extract

What is this about?

In an original writ petition under Article 227, the Patna High Court set aside the Munsif's order rejecting a prayer to delete the Bihar State Board of Religious Trust from an eviction suit, holding the lower court erred in not allowing the application under Order I, Rule 10 CPC.

What did the court decide?

The application under Order I, rule 10 of the Code of Civil Procedure dated 10.5.2007 filed by the petitioner is allowed and the impugned order of the learned Munsif is set aside.

Sri Thakur Navaneet Priyajee @ Vs Lakhendar Bhagat and Anr. — Property and Title | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17711 of 2011

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====================================================== Sri Thakur Navaneet Priyajee @ Navaneet Laljee, a Hindu Deity installed & worshiped in a temple commonly known as Hari Mandir, at Raja Ram Lane, Patna City, P.S.: Chowk, District: Patna, through Smt. Premlata Devi, wife of Sri Chunni Lal, resident of Hiranand Sah Ki Gali, under Chowk Police Station, in the district: Patna. ....Plaintiff .... Petitioner/s Versus 1. Lakhendar Bhagat, son of late Kira Bhagat, a tenant in Badi Mandir Ka Bagicha, Raja Ram Lane, Patna City, P.S.: Chowk, District- Patna. …Principal defendant….Principal Respondent. 2. Bihar State Board of Religious Trust, Vidyapati Marg, Patna, P.S.: Kotwali, District: Patna. ...Proforma defendant .... Proforma Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jashawir Singh Arora For Respondent No.1 : Mr. P.C.Agrawal For Respondent no.2 : Mr. Ganpati Trivedi ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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10 15-10-2012 Heard Mr. Jashawir Singh Arora, learned counsel appearing on behalf of the petitioner, Mr. P.C. Agrawal, learned counsel appearing for respondent no.1 and Mr. Ganpati Trivedi, learned counsel appearing for respondent no.2, Bihar State Religious Trust Board.

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This application under Article 227 of the Constitution of India has been filed questioning the order dated 23.6.2007 passed by the learned Munsif, Patna City, district- Patna in Title Eviction Suit No.18 of 2004, whereby the learned court below has been pleased to reject the application filed on behalf of the petitioner under Order-I, rule 10 of the Code of Civil Procedure

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Patna High Court CWJC No.17711 of 2011 (10) dt.15-10-2012

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(hereinafter referred to as ‘the Code’), seeking deletion of the name of defendant-respondent no.2 from the suit proceedings.

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It is not in contest that the suit in question has been filed by the plaintiff-petitioner seeking eviction of defendantrespondent no.1 from the suit premises which is a house bearing Holding No.123/40/37, Circle No.179, Ward No.51 in the town and district of Patna. In the suit proceedings the plaintiff had arraigned the Religious Trust Board also as a defendant along with the tenant-Respondent no.1. While the proceedings were going on, the application in question under Order-I, rule 10 of the Code was filed by the petitioner seeking deletion of the Religious Trust Board from the suit proceedings in view of the judgment and decree dated 30.6.1975 passed in Title Suit No.19 of 1967 by the learned Additional Subordinate Judge-III, Biharsharif, district- Nalanda. A first appeal bearing F.A. No.420 of 1975 preferred by the plaintiff-managing committee against the judgment and decree after having been dismissed for default has been restored by order dated 26.2.2009 passed in M.J.C. No.1208 of 2007, copy whereof is placed at Annexure-E to the counter affidavit filed on behalf of respondent no.1.

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It is not in contest that under the judgment and decree which is under challenge in F.A. No.420 of 1975, the temple in

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Patna High Court CWJC No.17711 of 2011 (10) dt.15-10-2012

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question which is the owner of the property has been held to be a private trust. As the said judgment and decree is pending adjudication before a Bench of this Court, this Court would not express any opinion thereon but the fact remains that it is in the backdrop of the judgment and decree that the petitioner has sought deletion of the Religious Trust Board from the array of the parties and which has been rejected by the order impugned.

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Considering that the nature of the suit is an eviction suit and the issue to be determined by the learned court below is whether or not there exists a landlord-tenant relationship between the petitioner and respondent no.1 as also taking into consideration the reasons whereunder the petitioner had sought deletion of the Religious Trust Board from the plaint of the suit and following the principles that the plaintiff is a ‘dominus litis’ of the proceedings, this Court is of the opinion that the learned court below has committed an error in not allowing the application of the petitioner. Whether or not the suit is maintainable at the instance of the petitioner in absence of the Religious Trust Board is entirely his own risk. If the petitioner has chosen to delete the Religious Trust Board from the plaint, it is him, who will face the consequences.

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For the reasons aforesaid, the order impugned cannot

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Patna High Court CWJC No.17711 of 2011 (10) dt.15-10-2012

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be upheld and is accordingly set aside. The application dated 10.5.2007 filed by the petitioner under Order-I, rule 10 of the Code placed at Annexure-1 stands allowed. The court below shall proceed accordingly

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This application is allowed.

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(Jyoti Saran, J)

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SKPathak/-

Sri Thakur Navaneet Priyajee @ v. Lakhendar Bhagat and Anr.

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Sri Thakur Navaneet Priyajee @ v. Lakhendar Bhagat and Anr.

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