SHAKSHI TOWNSHIP PRIVATE LIMITED Vs. KUMUD TANDON

JUDGEMENT

(1.) BY filing this petition under Article 227 of the Constitution of India, the petitioner has called in question the order dated 27th April, 2012 passed by the Court of Ninth Additional Judge to the Court of First Civil Judge Class II, Gwalior in Civil Suit No.45A/2011 whereby his application under Order 1 Rule 10 C.P.C. ( Annexure P/7) is rejected.

(2.) SHRI Prashant Sharma, learned counsel for the petitioner submits that by filing the application under Order 1 Rule 10 read with section 151 C.P.C. it was stated that the petitioner is also a beneficiary in the suit filed by plaintiff/ respondent No.1 Shrimati Kumud Tandon. In para 3 of the said application, it is specifically stated that the present petitioner has filed a suit for temporary injunction which was registered as Civil Suit No.7A/2010 before the Court below. Learned counsel for the petitioner submits that if the prayer/relief in the civil suit filed by respondent No.1 Shrimati Kumud Tandon and civil suit No.7A/2010 filed by the present petitioner is examined in juxtaposition, it will be clear that the same sale deed dated 25th/29th October,2010 is under challenge in both the suits. He submits that once the similar relief is claimed by the petitioner in a different suit, the Court below should have considered this aspect while deciding the said application whereas there is no consideration of this aspect by the Court below.

(3.) PER contra, Shri Shashank Indapurkar, learned counsel appearing on behalf of respondent No.2 supports the order and submits that the Court below has rightly held that if the suit is allowed no adverse impact will be passed on to the present petitioner and in absence of showing that the petitioner has purchased any part of the disputed land, by no stretch of imagination, he is necessary party and, therefore, the Court below has not erred in disallowing the application. In support of the contentions, learned counsel relied on the judgments of Hon'ble the Apex Court in the cases of Mohd. Yunus Vs. Mohd.Mustaqim and others, AIR 1984 SC 38 and Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, (2010) 8 SCC 329.