RAMESHWAR PRASAD GUPTA Vs. ADDITIONAL DISTRICT JUDGE BAREILLY

JUDGEMENT

(1.) The plaintiff had filed a suit against the defendant-petitioner for injunction restraining him from demolishing a part of the suit property of which he is a tenant and evicting him. One Rajendra Prasad Agarwal sought to implead himself in the said suit. The learned Trial Court i.e., the learned Civil Judge. JSCC Court, Bareilly by its order dated 10th December, 1998 passed in Suit No. 521 of 1996 had rejected, the said .application. The opposite party No. 1 had preferred a revision being Revision No. 38 of 1999. The learned Additional District Judge, IIIrd Court, Bareilly by an order dated 24th April, 1999 had allowed the said revision and reversed the order passed by the learned Trial Court impleading the opposite party No. 2 as defendant in the suit. The defendant No. 1 in the suit Shri Rameshwar Prasad Gupta had moved this writ petition challenging the said order dated 21st April, 1999 on the ground that no right inter se/the defendants could be established in a suit between the plaintiff and the defendant. According to him, Rajeshwar Prasad Agarwal, the opposite party No. 2 is a stranger and has no right or title in the suit property. He cannot be allowed to be added as party on the basis of his own application. Therefore, the said order should be set aside.

(2.) 1 have heard Mr. Rameshwar Prasad Agarwal, learned Counsel for the petitioner at length.

(3.) Whether the opposite party No. 2 can get himself impleaded in a suit between tiff and the defendant petitioner is a question which need not be gone into in this case so long the said order is not challenged by the plaintiff. It is the plaintiff against whose wishes. a party cannot be added. But the Revisional Court had found that the opposite party No.2 was a co-sharer in respect of the suit property and as such was a necessary party in the Us between the plaintiff and the defendants. Though it is denied by Mr. Agarwal that oppo- site party No. 2 was a co-sharer but in the objection filed by the defendant-petitioner which is Annexure-5 to this petition, he has admitted in Paragraph 14 that the opposite party No. 2 is a co-owner. But the dispute be- tween the defendants cannot be decided in a suit between the plaintiff and the defendants. It is true that if there is any dispute between the two defendants, the same cannot be de- cided affecting the rights of the defendants in a suit filed by the plaintiff on the strength of his right as a tenant. But then as to whether he is a tenant in respect of a property under the defendant No. 1 or under the defendant No. 2 or under both, such question can be relevant and can be gone into. But then such question can be assailed by the plaintiff. The defendant cannot claim any right to add the opposite party No. 2 in the suit. Since by rea- son of the said suit the right inter se, the res- pondents cannot be established. Even if any counter-claim is filed, the same can be adjudi- cated in between the plaintiff and added defen- dant No. 2. But the same cannot affect the right between the defendant Nos. 1 and 2. In any event, these are matters which are to be gone into at the time of trial of the suit and not at this stage. Since addition of parties does not determine a case between the parties, it is only for the convenience of the process of the suit. It is a finding prima facie as to whether he is a necessary party or not subject to adju dication in the suit on the basis of material that might come in course of trial. Therefore, all observation made by the Revisional Court and in this order are tentative in nature for the purpose of deciding the question of addition of parties for the time being subject to the de- plaincision as to whether the opposite party No. 2 is a necessary party of not or whether he is a co-owner or not which may be gone into in the suit itself. Since admittedly, in Paragraph 14, the defendant No. 1 had admitted that the opposite party No. 2 is a co-owner, therefore, it appears that the order dated 21 st April, 1999 is justified to the extent as between inter se the defendent. So long the said order is not challenged by the plaintiff, those questions cannot be raised by the defendant No. 1 and gone into in this petition. This question shall remain open and be decided either in the suit itself or if the plaintiff is so advised in a proceeding under Article 227 of the Constitution of India brought before this Court challenging the said order dated 21st April, 1999.