Dismissed

Riyaz Ahmed v. Executive Officer, M.B., Jaitaran and Ors.

Rajasthan HC26 Apr 2023CW/3648/2015

Case brief

AI extract

What is this about?

This is a writ petition challenging an order impleading 11 private respondents as necessary parties in a civil suit for permanent injunction. The High Court rejected the challenge, holding that the respondents were necessary parties because their easementary rights over the public passage would be gravely affected by the petitioner's proposed construction. The writ petition was dismissed.

What did the court decide?

Order dated 19.02.2015 impleading respondents denied; stay application disposed.

Riyaz Ahmed Vs Executive Officer, M.B., Jaitaran and… — Specific Performance | Rajasthan HC (2023)

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[2023/RJJD/010885]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 3648/2015

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Riyaz Ahmed S/o Mohammad Hanif Ji, By Caste – Khairadi Musalman, Aged about 30 years, R/O- Jaton Ka Bas, Jaitaran, Tehsil – Jaitaran, District Pali (Raj.)

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----Petitioner

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Versus

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Executive Officer, Municipal Board, Jaitaran, Tehsil Jaitaran, District Pali (Raj.).

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Chairman, Municipal Board, Jaitaran, Tehsil – Jaitaran, District Pali (Raj.).

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Ratan Lal S/o Jetha Ram Jat, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Amar Chand S/o Jetha Ram Jat, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Pras Mal S/o Jetha Ram Jat, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Mohan Lasl S/o Jetha Ram Jat, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Ram Pratap S/o Hazari Ram, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Shiv Ratan S/o Dana Ram, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Babnu Lal S/o Bhanwar Lal, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Prema Ram S/o Rama Ram, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Madan Lal S/o Gyan Mal Mathur, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Lunkaran S/o Champa Lal, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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Tej Raj S/o Shesh Mal, By Caste – Jain Oswal, R/0 – Jaitaran, Jaton Ka Mohalla, Tehsil – Jaitaran, District – Pali.

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The Civil Judge (Junior Division), Jaitaran, District-Pali. ----Respondent

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For Petitioner(s) : Mr. A.K. Babel For Respondent(s) : Mr. Nishan Mothsara

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HON'BLE DR. JUSTICE NUPUR BHATI

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Order

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26/04/2023

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The present writ petition has been filed under Article 226/227 of the Constitution of India with the following prayers:-

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“1. The order impugned dated 19.02.2015 (Annexure-

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1. passed by the learned Civil Judge (Junior Division), Jaitaran, District- Pali in Civil Original Suit No.01/2011 may kindly be quashed and set aside; and

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The application filed by the respondents no.3 to 13 herein under Order 1 Rule 10(2) read with Section 151 CPC may kindly be dismissed in toto.

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Any other appropriate, further, consequential and/or incidental order or direction which this Hon’ble Court deems just and proper in the peculiar facts and circumstances of this case may be passed in favour of the petitioner.”

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The facts apropos to the case are that the petitioner filed a suit for permanent injunction against the respondents Nos.1 and 2 wherein it has been alleged that the petitioner is having a residential house in Jaton Ka Bas, Jaitaran which is having two doors; one in eastern side and the other in the western side. It was alleged that since the door situated in the western wall of house was damaged due to rains and when he was substituting the said wooden door by an iron door, the defendants objected to the same and sent a notice dated 27.12.2010 for removal and closure of the said door and he was threatened to close the western exit of his house. Hence, the petitioner filed the said suit for permanent and mandatory injunction against the defendantsrespondents praying therein that they may be restrained from closing his western exit door so also from causing any damage to his house. It was also prayed that if during the pendency of the

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suit, if the said western door is closed by the defendants forcibly, the same may also be directed to be reopened by way of mandatory injunction.

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During the pendency of the said suit, the applicants – respondents Nos.3 to 13 herein, moved an application under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure stating inter-alia that their houses are situated in the neighborhood of the petitioner and that they are using the passage upon which petitioner has constructed stairs, which would result in narrowing of the passage/way. It was alleged in the said application that previously there was no door in the western side of the house of the petitioner and when he started constructing door in the western side, they made complaint to the SubDivisional Officer, Jaitaran, who in turn, directed the Executive Officer, Jaitaran for taking necessary steps in the matter. It was also stated in the application that previously also the father of the petitioner tried to put a door in the western wall of the house but he was restrained to do so by the Municipal Board. It was thus, prayed that they are necessary party to the suit and they may be impleaded as party defendants to the suit.

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The petitioner-plaintiff filed reply to the aforesaid application and denied all the averments made in the application and stated that the applicants were neither necessary nor proper parties to the suit. It was stated that the applicants themselves have constructed platforms and tanks in-front-of their respective houses for which the petitioner made complaints to the concerned authorities. Thus, in retaliation to the complaints made by the

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petitioner, the applicants have filed the present application to settle their personal score and to delay the proceedings.

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The learned Court below, after hearing the arguments of the respective parties, allowed the application filed by the applicantsrespondents Nos.3 to 13 filed under Order 1 Rule 10(2) read with Section 151 of the Code vide order dated 19.02.2015.

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Being aggrieved of the order aforesaid, the petitioner has preferred this writ petition. 7. Learned counsel for the petitioner submits that the petitioner has not claimed any relief against the private respondents and, therefore, they are not necessary parties to the suit. He submits that doctrine of dominus litis has been laid down in the catena of judgments, wherein it has been held that the petitioner cannot be compelled to contest the issue raised by the parties, which is not chosen by the petitioner to be impleaded as party in the suit. He further submits that the wooden door was already existing in the western side, however, the wooden door was replaced by an iron door and the respondent-authorities issued an order/notice for removal/closure of the said door and thus, the petitioner preferred the suit against the impugned order/notice.

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Learned counsel for the petitioner places reliance upon the judgment of this Court in Moti Lal Vs. Municipal Council, Pali & Ors. [2009(3) DNJ (Raj.) 1394].

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The relevant paragraphs of the judgment aforesaid, relied upon by the petitioner, are reproduced hereunder:-

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“9. In this case it appears that dispute is for civil rights and as per applicants and the Municipal Board entered into this dispute by issuing a notice to the plaintiff upon which, the plaintiff filed the suit for injunction against the Municipal Board wherein question of

(5 of 7)

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jurisdiction of Municipal board in issuing notice and taking action against the plaintiff will be relevant. So far as civil rights of any private party is concerned, those rights are independent right and not dependent upon grant of permission or refusal of permission to raise construction by the Municipal Board. The issue, which can be between two neightbours may be relevant in certain circumstances for the purpose of any action under the Municipal Act, but not dependent upon the orders passed by the Municipal Board while exercising their power to regulate building construction activities. Even if Municipal Board passes any order in favour of the plaintiff or newly added parties even then the civil rights of the parties remains uneffected then in that situation, by impleading the respondents Nos.2 and 3 in the suit can only enlarge the scope of the suit and can change the nature of the suit as the suit for injunction will be converted into suit for determination of the civil rights of two private parties instead of a suit for injunction based on pleas that Municipal Board has no jurisdiction to act against the plaintiff under Municipal Act.

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In that situation, even at this stage, if the parties are deleted that will only limit the scope of the suit to its original extent in place of enlarging it to convert suit for injunction into suit for determination of the civil rights.”

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Learned counsel for the private respondents submits that the private respondents are necessary parties to the suit as the door, which has been opened by the petitioner in the western side and being utilized by him by way of constructing stair-case, is gravely causing impediment to the public way, which is being regularly used by the private respondents. He also submits that the private respondents are directly affected by opening of the said door as well as construction of the stair-case in the passage/way because if the petitioner is permitted not only to to open the door in the eastern side but also permitted to use the same by way of staircase for entering into the house which is 4.5” high from plinth level of the road, the passage/way, which is used by the private

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respondents, would get narrowed as the houses of the private respondents are also situated there. Thus, their easementry rights would be gravely affected.

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Heard learned counsel for the parties and perused the material available on record.

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Learned counsel for the respondent has drawn attention of the Court towards the photographs annexed with the writ petition by the petitioner, which speaks volumes about the fact that the petitioner has opened the door in question for the purpose of using it as stairs, are also constructed on the passage/way. This is an admitted fact that the plaintiff is the master of the suit and he cannot be compelled to implead a particular person as party and is free to implead or not to implead a person as party in the suit. The petitioner has not claimed any relief against the private respondents and the prayers read as follows:-

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“(1) ds izfroknhx.k Lo;a muds deZpkjh] ukSdj&pkdj] gkyh ,tsUV }kjk oknxzLr edku tks okn&i= ds in la[;k ,d esa mYysf[kr iMkslksa ds chp fLFkr gS mDr edku ls oknh ds if”peh fudkl utjh uD”ks ds ekdZ , ls ch esa cus njokts dks tcju cUn ugha djs rFkk djok;s u tcjnLrh rksM&QksM dj oknh dk mDr edku {kfrxzLr djs] ges”kk ds okLrs jksdk tkosA

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(2) fd nkSjkus nkok izfroknhx.k Lo;a muds deZpkjh] ukSdj&pkdj] gkyh ,tsUV ds tfj;s tcjnLrh oknxzLr edku ls oknh ds if”pe fn”kk dh rjQ fudkl utjh uD”ks ds ekdZ , ls ch esa cus njokts dks tcjnLrh cUn dj ns] rks tfj;s esUMsVjh fu’ks/kkKk ls izfroknhx.k ds [kpsZ ls oknh dk oknxzLr edku dk if”pe fn”kk dk fudkl njoktk [kksyk tk;sa rFkk njoktk dCtk iqu% tfj;s iqfyl benkn ls fnyk;k tkosA

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(3) fd [kpkZ eqdnek reke oknh dks izfroknh ls fnyk;k tkosA”

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A bare perusal of the prayers made in the suit shows that if the petitioner’s suit is decreed in his favour, the petitioner would

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be permitted to open the door at the western side of the house and the authorities would also be restrained from demolishing any structure constructed by the petitioner in such way. In such a case, the petitioner would be at free will to not only use the door at the western side of his use but also be free to use stair-case constructed by him to enter the house in the way/passage, which is being regularly used by the private respondents. The private respondents, whose houses are situated nearby to the petitioner and are regularly using the way/passage, their rights would be gravely affected as the stair-case would be narrowing down the way/passage or may cause impediment in free usage of the way/passage.

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This Court finds that in such circumstances, the private respondents are necessary parties to the suit and thus the impugned order dated 19.02.2015, passed by the learned Civil Judge (Junior Division), Pali in Civil Original Case No.1/2011 requires no interference.

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The writ petition is, therefore, dismissed. The stay application also stands disposed of accordingly.

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(DR.NUPUR BHATI),J

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146-skm/-

Riyaz Ahmed v. Executive Officer, M.B., Jaitaran and Ors.

Case brief

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Riyaz Ahmed v. Executive Officer, M.B., Jaitaran and Ors.

Case brief

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