Amrendra Kumar Singh v. Kailash Prajapati

Patna High Court CWJC No.10885 of 2010 (11) dt.08-08-2013 Article 227 of the Constitution of India is aggrieved by an order dated 20.4.2010 passed in Title Suit No. 28 of 2009/341 of 2003 by learned Sub Judge 7th, Gaya, whereby an application filed by respondent no.8/Intervener came to be allowed, pursuant to which he has been impleaded as defendant No.3 in the said Suit. The suit land as described in the title Suit consists of an area of 17 & ‰ decimals of Plot No.204 (old) Plot No. 823, 262 ( new), Khata no. 17, is situated in village Salempur Panchdevta Thana No. 156, P.S. Tekari, District Gaya. The plaintiffs are respondents first set in the present application who filed the suit for declaration of title and recovery of possession over the suit land with the allegation that the petitioner/defendant no.2 had encroached upon the suit property. The respondents second set filed the petition under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) seeking impleadment in the suit claiming their right title and interest over the entire suit property. On the basis of such application, the Court below allowed the petition by the impugned order, as 3 Patna High Court CWJC No.10885 of 2010 (11) dt.08-08-2013 according to the Court below, it was proper in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Learned counsel for the petitioner submits that the Court below committed a gross error by allowing the application as the respondent no.8/Intervener, did not produce before the Court below any chit of paper to make out a prima facie case that he had title over the entire suit property or even more than that. He submits that if the respondent no.8 claimed any title over the suit property, he could have brought a separate suit and should not have been allowed to intervene in the present suit in the facts and circumstances of the case. Learned counsel appearing on behalf of respondent No.9, who is the legal heirs of defendant no.1 in the Court below, while strongly supporting the case of the petitioner, has submitted that the Court below has wrongly and arbitrarily exercised discretion available to it under Order 1 Rule 10 of the Code as he has failed to discuss in the impugned order as to how the impleadment of respondent 4 Patna High Court CWJC No.10885 of 2010 (11) dt.08-08-2013 no.8 was necessary for the purpose of effectual and just adjudication of the suit. Learned counsel appearing on behalf of the contesting respondent no.8, on the other hand, has submitted that the impugned order does not require any interference in a proceeding under Article 227 of the Constitution of India. The Court below has rightly exercised the discretion in view of the facts asserted by respondent no.8/Intervener before the Court below and had been able to make out a prima facie, case of his interest in the suit property. Notices were issued in this case. The plaintiff of the Title Suit has not challenged the impugned order nor has appeared in the present case in spite of service of notice. The jurisdiction of the Court to allow any person to be brought on record as defendant is not in dispute. This is not in dispute that the Court has the discretion to bring on record such person as party to the suit as it appears just and proper to the trial Court. The only dispute is as to whether the discretion has been exercised so arbitrarily and in such 5 Patna High Court CWJC No.10885 of 2010 (11) dt.08-08-2013 unreasonable manner that it requires interference by this Court in exercise of power under Article 227 of the Constitution of India. From the impugned order it appears that respondent no.8/Intervener specifically asserted his title over the property which is in dispute in Title Suit No. 28/2009/341/2003. The Court in such circumstance if exercised discretion to add him as a party defendant in the suit, it cannot be said to be arbitrary even if, along with his application for intervention, he did not bring on record the documents in support of his title. In course of argument, learned counsel for the petitioner as well as learned counsel appearing on behalf of respondent no.9 has strenuously urged that the claim of respondent no.8/Intervener of his title over the suit property was absolutely not tenable. Order 1 Rule 10(2) of the Code confers jurisdiction upon Court to order addition of name of any person, whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. The question of addition of parties under this rule is generally not one of 6 Patna High Court CWJC No.10885 of 2010 (11) dt.08-08-2013 initial jurisdiction of the Court but one of judicial discretion to be exercised in the facts and circumstances of the case. In my opinion, once such discretion has been exercised in allowing an application under Order 1 Rule 10(2) of the Code, the High Court should normally in exercise of supervisory jurisdiction under Article 227 of Constitution of India, not interfere with such exercise of discretion. The plea raised on behalf of the petitioner that claim of the Intervener Defendant/Respondent no.8 of his title over the suit property is not tenable, is surely available to him in course of trial. Such aspect can be gone into in course of trial. In view of the above, I am not inclined to interfere with the impugned order dated 20.4.2010 passed in Title Suit No. 28 of 2009/341 of 2003 by Sub-Judge 7th, Gaya. This application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-