ABDUL RAJJAK Vs. SMT. ARCHANA

JUDGEMENT

(1.) The petitioner/ plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 25.2.13 passed by I Civil Judge-I, Khandwa in Civil Suit No.112- A/08, whereby his application filed under Order 1 rule 10 of the CPC to implead Santosh Kumar Shukla, the husband of respondent No.1 as defendant in the impugned suit, has been dismissed.

(2.) Petitioner counsel after taking me through the papers placed on the record along with the impugned order by referring the averments of the impugned application filed under Order 1 rule 10 of the CPC to implead Santosh Kumar Shukla as defendant in the suit argued that besides his application he has also filed an application for amendment of the plaint to plead that the part of the disputed land was sold to respondent No.1 and some part of the land was sold to the proposed defendant and such transaction of sale being contrary to the existing legal position was not binding on the petitioner. Such amendment was allowed by the trial court. Subsequent to allowing such application, the impugned application under Order 1 rule 10 of the CPC was filed contending that Santosh Kumar Shukla being the party of the said sale deed, his presence is also required to adjudicate the impugned suit and in his absence the suit could not be adjudicated on merits on account of non-joining the necessary party in the matter. In continuation, by referring para-4 of the plaint, he said that in the light of this pleading of the petitioner, the trial court ought to have allowed the aforesaid application and permit the petitioner to implead Santosh Kumar Shukla as proposed defendant in the matter but such IA has been dismissed by the trial court under wrong premises and prayed to allow the aforesaid application by admitting and allowing this petition.

(3.) On the other hand, Shri Avinash Zargar, by justifying the impugned order said that the same being based on proper appreciation of factual matrix stated in the plaint, in the available circumstances of the case, does not require any interference at this stage. In continuation, he said that on the date of filing the suit, no cause of action was stated in the plaint against the proposed defendant and even on amending the aforesaid by way of the aforesaid application, no such date regarding cause of action against the proposed defendant is mentioned in the plaint. It was also said that the date of execution of the sale deed in favor of the proposed defendant has neither been pleaded nor any document is annexed either in the amendment application or with the impugned application filed under Order 1 rule 10 of the CPC. So, in such premises, in the lack of the pleading regarding cause of action in the plaint against the proposed defendant, the trial court has not committed any error in dismissing the application and extending the liberty to the petitioner to file separate civil suit. With this submission he prayed to dismiss this petition.