Court No. - 9
Case :- WRIT - C No. - 19897 of 2009 Petitioner :- Surendra Rai Respondent :- Addl. District Judge Mau And Others Counsel for Petitioner :- S.P. Pandey Counsel for Respondent :- S.C.,Ram Bilas Prasad
Hon'ble Ajit Kumar,J.
Order on Substitution Application The substitution application though has been duly served upon the respondent but no counter affidavit has been filed to the same.
Accordingly, the same is taken up.
Cause shown for filing substitution application with delay is sufficient and accordingly delay stands condoned.
Substitution application in consequence also stands allowed.
Let the heirs of the deceased petitioner be brought on record.
Office to carry out necessary substitution.
Order on Writ Petition Heard learned counsel for the parties.
By means of this petition under Article 227 of the Constitution, the petitioner has prayed to set aside the order dated 17.04.2007 passed by Civil Judge (Junior Division) Mau as well as the order passed by Additional District Judge, Court No.3, Mau dated 18.02.2008.
The submissions advanced by learned counsel for the petitioner is that when the petitioner had filed a suit claiming permanent prohibitory injunction against two defendants, written statement came to be filed on behalf of the defendants in which this fact has surfaced out that the land in suit in respect of which relief for perpetual injunction was prayed for, has been purchased by the wife of one of the defendants. He submits that since the petitioner has filed a suit for perpetual injunction qua the land in suit and it has come to be known subsequently through the written statement that the wife of one of the defendants has purchased the same, he being a dominus litis is entitled to the relief that no interference is made in respect of suit properties by a particular person and so the application seeking impleadment of such other person was clearly permissible in law and the trial court has manifestly erred in rejecting the same.
Learned counsel for the petitioner has further argued that the court below has not correctly held that the revision petition was not maintainable as against the order rejecting the application for impleadment. Since this is a petition filed under Article 227 of the Constitution, even if the revision petition was not maintainable, this petition was quite maintainable before this Court and, therefore, I am leaving this question of law open and not determining the same. In so far as the order passed by the trial court is concerned, that is in issue and that can very well be dealt with and decided in this petition.
Per contra, it is argued by learned counsel for the contesting respondent that the application seeking impleadment has been filed belatedly as according to him the suit was of the year 2001 and the application for impleadment has come to be filed as late as in the year 2006, however, he does not dispute the factum of purchase of land by the wife of one of the defendants.
Having heard learned counsel for the respective parties, their arguments raised across the bar and having perused the pleadings and carefully gone through the judgment of the trial court, I find the only issue to be as to whether the person whose impleadment is sought by the petitioner in a suit for permanent perpetual injunction was a necessary party or not.
The question of delay would not be a substantial issue as in order to arrest any miscarriage of justice this Court or any trial court, for that matter, in exercise of power under Order 1 Rule 10 of the Code of Civil Procedure may exercise discretion in favour of the plaintiff through an application. The legal position that is undisputed is that the party to the suit should be a necessary party or even a proper party can be very well made party to the suit proceedings.
It is well laid down law that the plaintiff in a suit is a dominus litis and in the event if any fact surfaces out that a particular party could be a necessary party in his wisdom against whom he seeks or he would require to seek appropriate relief, he may apply for impleadment of such a party. Not impleading such a party would only lead to multiplicity of litigation as the plaintiff in such circumstances would be left with no option but to institute another suit.
In the present case, admittedly, the party whose impleadment is sought is the wife of one of the defendants and, therefore, in the considered view of the Court, such a party deserves to be impleaded as a necessary party more especially in a suit for permanent perpetual injunction.
In such above view of the matter, therefore, I am not able to sustain the order passed by the trial court.
Besides above, as has be been argued, the question of limitation or delay, suffice it to observe that knowledge aspect of the matter plays a vital role in matters of delay. When in the written statement filed in the year 2006 itself has come to be disclosed that one of the defendants had purchased the suit property, filing impleadment application in the year 2006 cannot be termed as a delayed application. The argument therefore raised by the learned counsel for the respondent deserves to be rejected and is accordingly rejected.
Petition succeeds and is allowed.
The order passed by the trial court dated 17.04.2007 passed by Civil Judge (Junior Division) Mau, is hereby set aside.
The impleadment application filed by the petitioner stands allowed.
Necessary party be impleaded forthwith.
The liberty will rest with the additional party impleaded to file such written statement, if she wants or if she is so advised and thereafter the Court will proceed to decide the matter in accordance with law.
Order Date :- 17.12.2021/Madhurima