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Chhitarmal Om Prakash Vs. Municipal Council, Ajmer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 162 of 1983
Judge
Reported inAIR1985Raj160
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115(1) - Order 1, Rule 10
AppellantChhitarmal Om Prakash
RespondentMunicipal Council, Ajmer and anr.
Appellant Advocate J.S. Rastogi, Adv.
Respondent Advocate S.R. Surana and; Hemandas, Advs.
DispositionPetition dismissed
Cases ReferredMazhar Hussain v. Shafi Mohd
Excerpt:
.....mentioned above. contrary to it, there will be no failure of justice, if his application is accepted, which has been accepted by the lower courts and, is allowed to assist the municipal council ajmer and contest the case of the plaintiff......was alleged that it is on account of this the plaintiff deliberately did not implead gagan das as party. applicant gagan das alleged that he remained in possession on property no. 600 from 1961 to 1974, constructed two godowns and paid house-tax. but the municipal council ajmer allotted this land to super bazar and in lieu of that the municipal council, ajmer allotted shops nos. 73 and 101 to the applicant in anaj mandi. it was alleged that he has withdrawn the civil suit, which he filed against the municipal council.3. it was pointed out that this very plaintiff earlier also filed a suit before the munsiff (west), ajmer for injunction but that was dismissed and the appeal was also dismissed and so also the revision by the high court.4. applicant gagan das further contended that the.....
Judgment:
ORDER

G.M. Lodha, J.

1. This is a plaintiffs revision against the order of the learned Additional Civil Judge, Ajmer dt. 12-1-1983, whereby he allowed the application of non-petitioner Gagan Das under Order 1 Rule 10, C.P.C

2. Non-petitioner Gagan Das filed an application on 27-1-1982 during the proceedings of Civil Suit No. 4/82 that the plaintiff M/s Chhitar Mal Om Prakash was given two shops of Nos. 73 and 116 by the Municipal Council temporarily on the condition that as soon as godown No. 26 is taken possession of by the plaintiff, he would hand over the possession of these shops to the Municipal Council, Ajmer. Although the plaintiff has constructed godown No. 26, but he has not handed over possession of the shops to the Municipal Council. It was further alleged that the plaintiff is aware that these two shops are to be given to applicant Gagan Das in view of the agreement between Gagan Das and the Municipal Council, Ajmer. It was alleged that it is on account of this the plaintiff deliberately did not implead Gagan Das as party. Applicant Gagan Das alleged that he remained in possession on property No. 600 from 1961 to 1974, constructed two godowns and paid house-tax. But the Municipal Council Ajmer allotted this land to Super Bazar and in lieu of that the Municipal Council, Ajmer allotted Shops Nos. 73 and 101 to the applicant in Anaj Mandi. It was alleged that he has withdrawn the civil suit, which he filed against the Municipal Council.

3. It was pointed out that this very plaintiff earlier also filed a suit before the Munsiff (West), Ajmer for injunction but that was dismissed and the appeal was also dismissed and so also the revision by the High Court.

4. Applicant Gagan Das further contended that the Director, Local Bodies by his order dt. 30th July, 1980 has dismissed the plaintiffs claim and plaintiff has again filed second suit. It was pointed out that the Director has also treated him as necessary party, but the plaintiff was in collusion with the Municipal Council, Ajmer. The Municipal Council in its reply accepted the allegation of applicant Gagan Das that there is an agreement that as soon as shop No. 73 becomes vacated, it would be given to Gagan Das. However, for shop No. 116 the reply was that while taking the land of the applicant, an assurance was given by the Municipal Council that shops Nos. 73 and 101 would be allotted to him, but denied the allegations of application about shop No. 116.

5. Order 1, Rule 10, C.P.C. reads as under : --

'10. Suit in name of wrong plaintiff : --

(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 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.

(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 whose 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.

(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.

(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.

(5) Subject to the provisions of the Limitation Act, 1877 (15 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.

6. A preliminary objection has been raised by Shri Surana appearing for the respondent that the revision petition is not maintainable because under Section 115, C.P.C., the petitioner is required to show that he is covered by one of the exceptions to proviso to Sub-section (1) of Section 115, C.P.C., which reads as under :

'Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'

7. Learned counsel for the respondent submitted that even if the revision petition is accepted and the application of the applicant Gagan Das is dismissed and he is not made a party, it would not result in disposal of any suit or proceedings as contemplated in Clause (a) of the Proviso to Sub-section (1) of Section 115 C.P.C. Similarly, neither the plaintiff petitioner would suffer any irreparable loss nor it would cause any failure of justice, because by addition of the party, there would be enhancement of justice rather than failure of justice.

8. Mr. Surana, learned counsel for the respondent pointed out a decision of this court in Murlidhar v. Krishi Upaj Mandi Samiti 1978 Raj LW 34 : (AIR 1978 Raj 48 at p. 51), wherein it has been held as, under :

'The provisions of Order 1 Rule 10, C.P.C. confer wide discretion on the trial court. If the trial court exercises discretion in favour of the applicant who wishes to be impleaded as a party, this court on the revisional side, will not ordinarily interfere unless impleading of the party results in manifest failure of justice, or where the trial court has illegally or with material irregularity exercised its discretion. In Hindustan Aeronautics v. Ajit Prasad (AIR 1973 SC 76), it was held that High Court shall not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. The trial court has committed no error of law. If Prabhatilal had not been added as a party it might have led to multiplicity of proceedings. Under Order 1, Rule 10, C.P.C. even those persons can be impleaded as party who set up a counter-claim to the interest and title of the plaintiff. The present case is of this nature. I am of the considered view that it cannot be said that the learned lower court has acted illegally or with material irregularity in exercise of its jurisdiction'.

9. Mr. Rastogi, learned counsel for the petitioner on the contrary relied upon a decision of this court in Ramesh Chandra v. Mukhtyar Singh, AIR 1980 Raj 21, wherein, this court observed that a third party claiming independent title should not be allowed to join as a party to raise question foreign to the controversy in suit. In such a situation, the revision was entertained. In the present case, it is admitted by the Municipal Council that at least one of the shops, which is subject matter of the suit, stands allotted to the applicant Gagan Das and the possession would be handed over as soon as it is taken over from the plaintiff. The controversy in the case is that whereas the Municipal Council's case is that these premises were given to the plaintiff temporarily till construction of godown, which he has constructed now; the plaintiffs' case is that they are entitled to remain in possession as tenants of these shops and Municipal Council cannot evict them except without filing a regular civil suit. It is not in dispute that the case has got a chequered history as suit was earlier filed by the plaintiffs and the same was dismissed as per the facts mentioned above.

10. The question, therefore, arises whether in such a situation when the lower court has passed an order joining Gagan Das as a party, it would result in failure of justice, if it is not quashed in revisional jurisdiction.

11. So far as Clause (a) is concerned, I have got no doubt that it cannot apply in the present case because of the fact that even if revision is accepted it would not result in disposal of the suit or any proceedings. The prerequisite condition for application of Sub-clause (a) of the proviso is that the decision in the revision by its acceptance must result in final decision of the suit or the proceedings, in which the impugned order was passed and which is sought to be quashed.

12. That being so, the next question is whether the plaintiff would suffer irreparable loss or there would be failure of justice.

13. Mr. Rastogi, relies upon the judgment of Ramesh Chandra's case (AIR 1980 Raj 21) referred to above and submits that by implication, it must be presumed that the court should hold that there is failure of justice. It is not possible to read the above decision of Ramesh Chandra (supra) so as to draw an inference that this court by implication should presume and then decide the case unconsciously holding by implication that there would be failure of justice. It is obvious that no such objection was taken in this case before the court and no decision was given on this point. I am unable to read the judgment in such a manner that by implication the court had held that there was a failure of justice.

14. It may also be pointed out that in Ramesh Chandra's case the applicant based his claim on the ground that the suit property belonged to the applicant and was in his possession and that the plaintiff was neither the owner of the suit property nor was in possession. In such a situation when the case of the applicant was different from both plaintiffs and defendant's in that case the court was justified in holding that the plaintiff is setting up independent title having no relevancy with the defendant and the plaintiff and, therefore, he cannot be joined as a party.

15. In any case, the above decision cannot assist the plaintiff-petitioner for persuading this court to give a finding that there would be failure of justice if a person, who should not be a party has been joined as party by the trial court.

16. Shri Jagdish Rastogi, the learned counsel for the petitioner invited my attention to the decision of this court in Praksh Chander v. Smt. Sunder Bai, AIR 1979 Raj 108 wherein it was held that the non-compliance of Order 5, Rule 19-A, C.P.C. has resulted in failure of justice warranting interference under Section 115, C.P.C. Obviously, there, the defendant was precluded from interference on account of absence of service and declaration of service of summons as contemplated and warranted by Order 5 Rule 19 A, C.P.C. which resulted in failure of justice because there was complete denial to the defendant to appear and contest the case.

17. Shri Rastogi also invited my attention to another decision of this court in Mazhar Hussain v. Shafi Mohd, 1969 WLN 316 wherein the ambit and scope of Order 1, Rule 10. C.P.C. has been formulated. It was held that, unless a case falls within Rule 10(2), the plaintiff cannot be compelled to fight a litigant not of his own choice. In this decision, his Lordship held that, it is only for deciding a question involved in the suit that, the party can be added or joined to decide the dispute completely and effectually.

18. If the complete and effectual adjudication of the entire dispute between the parties forms the frontiers of the scope of Order 1, Rule 10, C.P.C. then, in each case, it will have to be examined on merits. I am not deciding the revision on merits finally on account of the fact that I am convinced, the plaintiff cannot be allowed to challenge the order under Section 115, C.P.C. because in the facts and circumstances, narrated above, there has been no failure of justice, nor he would be put to an irreparable loss or injury as contemplated by Clause (b) of Exceptions to proviso to Section 115, C.P.C.

19. In my considered opinion broadly, the dispute relates to the two shops, the owner of which is Municipal Council, Ajmer. It is admitted case of the Municipal Council Ajmer at least that one of the shops out of the two alleged shops was alloted to the applicant Gagan Das with the condition that, the possession would be taken as soon as it is taken from the plaintiff. The above broad facts of the case are kept in view while adjudicating the question raised. I am convinced that if Gagandas is not allowed to contest the case, it may result in failure of justice because of the peculiar facts and circumstances of the case, mentioned above. Contrary to it, there will be no failure of justice, if his application is accepted, which has been accepted by the lower courts and, is allowed to assist the Municipal Council Ajmer and contest the case of the plaintiff.

20. In view of the above, without deciding the merits of the case, I hold that the revision petition is not maintainable as it fails to fall within the ambit and scope of Clause (a) or (b) of exceptions to the proviso to Section 115, C.P.C.

21. Consequently, the revision petition is dismissed without any order as to costs. It is, however, made clear that, since I have not decided the case on merits, it would always be open to the plaintiff to agitate the question, in case he is required to file an appeal against the final decree.


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