High Court
Case Details
CRP 306/2008 BEFORE HON’BLE MR JUSTICE S. TALAPATRA Heard Mr. P. K. Roy, learned counsel appearing for the petitioners as well as Mr . N. Dhar, learned counsel appearing for some of the private respondents. This is a petition filed under Article 227 of the Constitution of India against the order dated 28.07.2008 passed by the Munsiff No.2, Karimganj in Titl e Suit No.240 of 2007. The genesis of this petition lies in the impleadment of the respondent N o.4 to 9 by the impugned order dated 28.07.2008. For appreciation the order dated 28.07.2008 is extracted hereunder:
Legal Reasoning
(cid:28)Today is fixed for order on Petition No.270/08 filed by the plaintiff and anoth er petition No.975/2 filed by the defendant/petitioners. Through the aforesaid petition No.270/8 the plaintiff side submitted, that story of alleged encroachment as averred by defendant in their written statement as w ell as enclosed map submitted are disputed documents which are required to be ad judicated by summoning the defendants before accepting the same in the case reco rd. Perused the petition. Heard the submission of the learned counsel. The genuineness or ingenuineness of a document is a matter of adjudication which could be taken up during the time of trial. Hence, summoning the defendant at t his stage of proof the genuineness of document is not tenable as well as maintai nable. Therefore the petition is stands rejected. Though aforesaid petition No.975/2 the petitioners, Shri Sitangshu Sekhar Das & others inter alia submitted that to the north of the homestead of plaintiffs the re is a Drain and Municipal path which has been used by the petitioner in their day to day life. But the plaintiff with evil motive constructed a pucca brick wa ll most illegally and arbitrarily encroaching the said drain and a portion of th e Municipal path creating inconvenience and troubles to the petitioners as well as the inhabitants. So in this regard the petitioners made complaint before the Deputy Commissioner, Karimganj and in turn he averred the inhabitants of the loc ality including the petitioners that the encroachment created by the plaintiffs will be removed through process of law. But now it has been came to the knowledg e of the petitioners that the plaintiff filed the instant suit without making th e inhabitants and the petitioners as parties in the suit with false, fabricated baseless and imaginary statement suppressing the facts to grab the drain and a p ortion of Municipal path whereas the interest of the petitioners and inhabitants are subsisting. So in order to protect the interest of inhabitants and the petitioners it is req uired to add the petitioners as defendants in the suit or allowing them to conte st the suit on merit as the representative capacity. On the other side, plaintiff filed written objection stating inter alia that the petition is not maintainable and the petitioners have no right, title, interest in respect of landed property of plaintiff as described in the schedule of plai nt. Moreover, the petitioners have no subsisting as well as substantial interest in respect of suit property and as such the petition is liable to be rejected. Perused the petition. Heard the submission of the learned counsels. The above said petition has been filed by one Dilip Kumar Deb a resident of Lakh icharan Road, Ward No.5 supported by an affidavit. From the available address, p rovided by the petitioner, it reveals that petitioner’s house and the resident o f plaintiff are in Ward No.5 wherein the alleged encroachment has been made by t he plaintiff which facts also reveals from the encroachment Case No.14/07. So na turally the alleged drain and Municipal path under encroachment effect the subst antial interest of the petitioners & others residing in the ward No.5. Hence, considering all the facts and circumstances of the case the prayer of the petitioners for impleading them in this suit as added defendant is accepted. Moreover the petitioners are allowed to defend the case in representative capaci ty and in this regard they are directed to take steps U/O 1 R 8 of C.P.C. for gi ving notice to the interested parties. (cid:29) By the petition No.975 of 2002 filed by the said respondents the implead ment was sought on the ground that the plaintiff has encroached some parts of th e Municipal drain and of the Municipal path. Therefore, as users of the said roa d and Municipal drain, the said respondents filed the petition for impleadment. After hearing, the Munsiff No.2 passed the said order dated 28.07.2008 and the s aid respondents were allowed to defend the case in the representative capacity a nd they were directed to take steps under Order 1 Rule 8 of the CPC for giving n otice to the concerned persons. Mr. Roy, learned counsel at the outset made a statement that the plainti ff is not claiming any right or relief in the suit over the Municipal drain and Municipal road as referred in the petition being No.975 of 2002. Aggrieved by a notice as issued in the Encroachment Case No.14 of 2007 by the De puty Commissioner, Karimganj on 05.09.2007, the suit for declaration and injunct ion has been filed by the plaintiff. Mr. Roy, learned counsel further submitted that the private respondents are the strangers to the entire dispute and they having no locus cannot be impleaded in the suit. On the other hand, Mr. Dhar, learned counsel for some of the private respondents submitted that even though the Municipal drain and Municipal path are the prope rties of the Municipal Body or the Government, as the user of amenities, they go t locus to be impleaded in the suit. This Court has examined the plaint as well as the written statement filed by the respondent Nos.1 and 3 and of the opinion that the respondent Nos.4 to 9 are st rangers to the dispute since they are not necessary and proper party in the suit , their impleadment is entirely unjustified. In view of this matter, the impugned order is interfered with and set aside. The suit shall proceed against the defendants as impleaded by the plaintiff at the time of institution of the suit. It is expected that the suit would be taken to its logical end within a reasonable period preferably within a period of one yea r since the matter relates to ejectment from the Government property. In the result, this petition is allowed and disposed of. LCRs be returned forthwith.