Dismissed

Mangeram and Others v. Rajkumar and Another

Uttarakhand HC16 Jul 2019WPMS/2957/2016

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application for impleadment under Order 1 Rule 10 CPC. The High Court held that in a suit for permanent injunction, the respondent had the right to choose their opponent, and petitioners could not force their impleadment as they were not necessary parties.

What did the court decide?

Writ petition dismissed as the petitioners are not necessary parties to the suit for injunction.

Mangeram and Others Vs Rajkumar and Another — Property and Title | Uttarakhand HC (2019)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 2957 of 2016 (M/S)

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Mangeram and others .…Petitioners. Versus Rajkumar and another .… Respondents.

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Present :

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Mr. Sanjay Kumar, Advocate on behalf of Mr. Tapan Singh, Advocate for the petitioners. Mr. Nikhil Singhal, Advocate for the respondents.

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Dated: 16th July, 2019

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JUDGMENT

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Hon’ble Sharad Kumar Sharma, J.

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There is a family tree as described in the suit, which is being referred in Suit No. 371 of 2011, Rajkumar Vs. Anurag @ Tellu, which was instituted on 13^th November, 2011, which is given hereunder :-

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Kundan

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____________________________
Jaipal Chander Bhullan Anurag@ Tellu
! ! ! (defendant No.1)
! ___ ! ________ !
! Mangaram Dharmendra !
! !
! ______________ !
! Kallu Vinod Pritam
!
! _________________________________
Anil Ravi Rajkumar
(Plaintiff)

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Whereby Kundan is said to have been succeeded by four sons. Jaipal, who had three sons, one of them being the third son, Raj Kumar i.e. the plaintiff / respondent No. 1. Second son is Chander, who had two sons, who are petitioner Nos. 1 and 2, and they were not party respondent to the suit, in question; third son Bhulan, who was

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succeeded by three sons, namely, Kalu, Vinod and Pritam, they are also not parties to the suit as instituted by Raj Kumar S/o Jaipal. Out of three sons of Bhulan, two sons, namely Vinod and Pritam have filed an application along with Mange Ram and Dharmendra, both sons of Mr. Chander under Order 1 Rule 10 of the C.P.C. to be substituted in the Suit No. 371 of 2011, which has been filed by Raj Kumar and the 4^th Son of late Mr. Kundan, namely Anurag @ Telu.

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In the Suit thus instituted, the plaintiff/respondent No. 1, herein, had only sought a decree of permanent injunction as against Anurag @ Telu, the 4^th son of late Kundan, i.e. the uncle of the plaintiff. While the Suit was pending consideration for the relief of permanent injunction in relation to the property as described in the Suit, the present petitioners have filed an application for impleadment, invoking Order 1 Rule 10 of the C.P.C., praying to be impleaded in the Suit as defendants. The said application was objected by the plaintiff/respondent No. 1 and on considering the objection, the application preferred under Order 1 Rule 10 of the C.P.C. by the present petitioners was rejected by the Court of learned Civil Judge (Junior Division) Haridwar, vide its order dated 19^th August, 2015, holding thereof that the applicants/petitioners to the impleadment application are neither the necessary nor the appropriate parties required to be impleaded because in their absence, the suit itself can still be decided as their presence in suit for the purposes of deciding the suit for injunction, their presence is not necessary.

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This is one aspect of the matter. The second aspect to be considered is that it is always the choice of the plaintiff, which plays a predominant role to choose his opponent. If an act of interference in the property, in dispute, is only contemplated in the Suit to be at the behest of the uncle, Anurag @ Telu, who is defendant in the suit, atleast, the petitioners, who are the children of the other two brothers, Chander and Bhulan, they cannot force themselves upon the plaintiffs to implead them as party to the Suit, because it is absolutely a choice

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of the plaintiffs under the principle of dominus litus to choose his opponent. If the plaintiff does want to safe any relief in suit against them, they may not be the necessary party, as in their absence too, the suit for permanent injunction can be decided effectively.

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Furthermore, what is important to be seen is, even let us presume that an application under Order 1 Rule 10 of the C.P.C., which was preferred by the petitioners to be impleaded as party to the suit is concerned, no propriety could be attached to the said application for the reason, in the family tree, which has been shown in the map, Chander is show to have been succeeded by only two sons i.e. Mange Ram and Dharmendra, who is the petitioner No.1 and 2 respectively and as far as Dharmendra is concerned, who is shown to be son of Chandar is concerned, he is not shown as to be a party, who is succeeding the rights of Chandar in the family tree defined in the suit by the plaintiff .

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Looking it from the aspect of impleadment of petitioners Nos. 3 and 4, who claimed themselves to be heirs of Mr Bhulan Singh, the Court does not visualize any reason as to why, out of three sons of Bhulan, who have been shown in the family tree only Kalu, who is brother of the petitioner Nos. 3 and 4, why he has been left out to me made as a party to the suit.

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Consequently, the application under Order 1 Rule 10 of the CPC was considered by the Trial Court by way of paper No. 34-A, which was dismissed by the Court of Civil Judge (Junior Division), Haridwar, holding thereof that there cannot be a choice by the heirs of late Kundan for themselves to be impleaded as a party to the suit. There was no necessity nor the petitioners and they cannot impose upon the plaintiff for making them as party to the suit, more particularly, when the claim is only sought by the plaintiff in relation to a decree of injunction against impleaded defendant because in the absence of the petitioners being impleaded in the suit, obviously, the

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decree which is rendered will not be having any binding effect on the petitioners. Also because, it is not the case of the plaintiffs / respondents that the petitioners had at all ever been instrumental in interference for necessitating him to file a suit for decree of injunction against them.

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In that eventuality, when the plaintiff/respondent No. 1 has chosen his defendant in the suit, the other heirs irrespective of the fact whatsoever rights they may be having, they can always invoke any independent jurisdiction or proceedings for settlement of their rights rather than permitting them to implead themselves in the proceedings in which the plaintiffs has not chosen them as not to be a party respondents under the principle of dominus litus. (diary)

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As against the rejection of the application by the Trial Court vide its order dated 19^th August, 2015, the petitioners have preferred a Revision, the Revision too has concurrently recorded the finding to the effect the petitioners are neither the necessary nor essential party, that too in the suit for simplicitor injunction, who are required to be impleaded in the Suit nor it is the case, where, in their absence, the suit cannot be decided effectively.

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Consequently, the Writ Petition lacks merit and is accordingly dismissed. Plaintiff has all his rights to choose his defendant, no one can claim as of right to be impleaded as defendant in a proceeding

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Shiv

Mangeram and Others v. Rajkumar and Another

Case brief

What is this about?

What did the court decide?

Mangeram and Others v. Rajkumar and Another

Case brief

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