M P EDUCATION SOCIETY Vs. SABIR ALI KHAN

JUDGEMENT

(1.) THE petitioners by filing this petition under Article 227 of the Constitution have assailed the order dated 22.08.2012 passed in Civil Suit No. 47A/2009 by IV Additional Civil Judge Class -II Gwalior. By the impugned order, the Court below has allowed the application under Order 6 Rule 16 C.P.C. preferred by the plaintiff / respondent No.1.

(2.) THE plaintiff / respondent No.1 filed a suit for declaration of title in respect of agricultural land. The details of the land are described in para 4 of the Suit. During pendency of the suit, the plaintiff preferred an application to implead the present petitioners as defendants. This prayer was made by preferring an application under Order 6 Rule 17 C.P.C. In addition, in the said application, it was prayed that the sale deed executed by respondent No.2 in favour of the petitioner be declared as null and void. The said application preferred under Order 6 Rule 17 C.P.C was allowed by the trial Court. Thereafter, present petitioners filed their joint written statement. Then the plaintiff / respondent No.1 preferred an application under Order 6 Rule 16 C.P.C. (Annexure P/6). In this application, it is urged that the plaintiff has prayed for declaring certain sale deeds as null and void and inoperative, but in another civil suit No. 51A/2010 the plaintiff in the capacity of power of attorney holder of his father is contesting the matter. It is urged that because of pendency of civil suit No. 51A/2010, relief claimed against the defendants No. 2, 3, 5 to 9 ( present petitioners) is no more necessary and therefore, the plaintiff intended to withdraw the said relief with further prayer that defendants No. 2, 3, 5 to 9 be not treated as necessary parties and they be deleted from the array of defendants.

(3.) IT is contended that plaintiff is not a legally trained mind. He gave this information about pendency of similar case to his advocate and then his Advocate advised him to prefer an application under Order 6 Rule 16 C.P.C. The present petitioners filed their detailed reply. In the reply, it is contended that plaintiffs in both the suits i.e. the instant one and one which is relied upon by the plaintiff (case No. 51A/2010), are different. Decision of first suit will not have an effect of " res judicata" on the other suit. Relief was added by the plaintiff by way of an amendment. This cannot be withdrawn contrary to mandate of Order 6 Rule 16 C.P.C. .