Supplementary affidavit filed on behalf of sole petitioner is taken on record.
Heard Ms. Anjali Singh, learned counsel for the petitioner.
The petitioner has preferred present writ petition under Article 227 Constitution of India to set aside the judgement and decree dated 29.10.2019 passed by the District Judge, Jaunpur, in Revision No. Nil of 2019 (Brij Mohan Vs. Radhey Shyam and others), copy of which is appended as annexure 7 to the writ petition and order dated 21.10.2019 passed by the Civil Judge (Jr. Division), Shahganj, District Jaunpur on Application 75-C in Case No.1067 of 2007 (Brij Mohan Vs. Samraji and others).
The facts in brief as contained in the writ petition are that the petitioner has preferred a partition suit being Case No.1067 of 2007 (Krishna Mohan Vs. Ramraji and others) for partition of ancestral property as shown in the plaint map, which was amended by order dated 7.7.2015. In the aforesaid suit notices were issued to the defendant and pleadings have been exchanged between the parties. After filing of the said suit the Amin Commissioner was appointed and he submitted his report on 4.12.2007 verifying the possession of plaintiff/petitioner over the property in dispute. During the pendency of the aforesaid suit, the respondent no.3 namely Rambali, who has got no concern with the property in dispute in any manner whatsoever, sold the property in dispute to defendant/respondent no.4 vide sale deed dated 27.3.2014 and 31.5.2014. Thereafter, an application for impleadment was filed by the respondent nos.2 and 3 under Order 1 Rule 10 C.P.C. for their impleadment in the said partition suit as defendant nos.4 and 5. The aforesaid impleadment application was allowed by the Trial Court/Civil Judge (Jr. Division), Shahganj, District Jaunpur by order dated 9.2.2015 and accordingly Rambali and Ram Karan was impleaded in the aforesaid suit as defendant nos.4 and 5. When the plaintiff-petitioner came to know regarding the aforesaid impleadment application, he filed amendment application for necessary amendment in the partition suit, which has been allowed by order dated 7.7.2015, in pursuance thereof, the plaint has been amended on 10.12.2015. Thereafter one another person namely Radhey Shyam filed application 75-Ga along-with affidavit 76-Ga alleging that the property in dispute is the ancestral property of Radhey Shyam and he has 1/3 share in the said property. Against the said application 75-C, petitioner filed objection 81-Ga dated 10.9.2018. The Civil Judge (Jr. Division), Shahganj, District Jaunpur, in an illegal mannerwithout going into the merits of the case allowed the aforesaid application filed by the contest respondent/Radhey Shyam vide order dated 21.10.2019. Against the aforesaid order revision was preferred by the petitioner, which was numbered as Civil Revision No. Nil of 2019 (Brij Mohan Vs. Radhey Shyam and others) on 25.11.2019. The said revision was dismissed by the revisional court namely District Judge, Jaunpur vide its judgement and order dated 29.11.2019. Challenging the aforesaid orders the petitioner has preferred the present writ petition.
It is argued by learned counsel for the petitioner that the order passed by the revisional court is absolutely illegal. The revision was rejected by the revisional court solely on the ground that the order impugned is purely interlocutory order and against the said order revision is maintainable. It is further argued that the order impugned is absolutely non speaking order and no reasons whatsoever has been given in the same by the revisional court. Learned counsel for the petitioner relied upon judgement passed by a Coordinate Bench of this court in the case of K.S.M. Basheer Mohammad V. Ram Bali Singh reported in 2001 (3) ALL WC 2429. He relied upon paragraphs 8, 11 and 12 of the aforesaid judgement:-
"8. A perusal of provisions of Section 115(1)(c), C.P.C. would show that the revisional jurisdiction of High Court is not confined only for mere interference with the subordinate court's order. If that Court exercises a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it, the High Court can exercise its revisional powers in case the subordinate court has acted in exercise of its jurisdiction illegally or with material irregularity. In the matter of Bhagwan Prasad and others V. Mata Prasad 1977 Cri LJ 894, this Court has held that whether a person should remain joined as a plaintiff with other persons, is a matter which affects the right of a party to maintain a suit and as such, an order disposing of such an application would, therefore, amount to a case decided and a revision from that order would, therefore, be maintainable. In view of this, in case the subordinate court has impleaded a party which is not a necessary party In the suit, certainly it cannot be denied that the subordinate court has acted in exercise of its jurisdiction illegally or with material Irregularity. Therefore, this Court has jurisdiction to exercise its revisional powers to see whether while allowing impleadment application, the subordinate court has acted in exercise of its jurisdiction, illegally or with material irregularity.
11. In view of the above, it is the duty of the Court to see whether the name of any person ought to have been joined or whether the presence of a person before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and to settle all questions which are involved in the suit. In case, a separate suit has been filed by a tenant against his landlord for permanent injunction and the landlord files a suit against other persons for permanent injunction and possession, the cause of action would be entirely different in such cases and the Court would have to see whether merely due to filing a suit by a tenant, it would be necessary to implead him as a defendant in the other suit which has no concern with the tenant and has been filed for a different cause of action and in such circumstances, the presence of the tenant would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit filed by the landlord against different persons for different cause of action.
12. In the impugned order, learned court below has nowhere observed that the presence of Ram Bali Singh opposite party No. 1 is necessary before the Court in order to enable the Court effectually and completely to adjudicate upon and to settle all the questions involved in the suit."
In this view of the matter, it is argued that the order impugned is liable to be set aside.
Heard learned counsel for the petitioner and perused the record.
In this view of the matter, the order cannot be sustained hence the judgement and decree dated 29.10.2019 passed by the District Judge, Jaunpur is liable to be set aside and the same is hereby set aside. The revisional court is directed to pass fresh order in accordance with law expeditiously and preferably within a period of three months from the date of receipt of self attested computer generated copy of this order downloaded from the official website of High Court Allahabad.
Order Date :- 18.1.2021 Pramod Tripathi