BRAJENDRA KUMAR BAJPAI Vs. RAJ KUMAR JAIN

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution assails the order dated 16.07.2013 whereby the application preferred by petitioner/intervenor under Order 1 Rule 10 of CPC is rejected by the court below.

(2.) The petitioner filed said application by contending that he filed Civil Suit No.39-A/2009 which was decided on 23.12.2009. The trial court declared him as co-owner of the property. The instant suit is filed by respondent No.1/plaintiff for eviction and recovery of rent. However, the court below has framed issue No.2 in relation to ownership of the suit property. Since, suit property is same and said issue cannot be decided without hearing the petitioner, it was felt necessary by the petitioner to file an application seeking impleadment. The said application was rejected by court below by assigning following reasons:-

(3.) Shri B.D. Jain submits that the order is bad in law because when earlier application was rejected on 24.01.2006, the judgment and decree dated 23.12.2009 was not in existence. In view of subsequent event i.e., passing of judgment, whereby, right of the petitioner is decided, coupled with the fact that the court below has framed issue No.2 in relation to ownership of the property, the petitioner is a necessary party. The decision dated 24.01.2006 will not operate as res-judicata. In addition, it is contended that even if the judgment and decree dated 23.12.2009 is sub-judice, fact remains that as on date, the said judgment is operative unless the same is set-aside. In support of his submissions, he relied on (Jaideep Shah v. Rashmi Shah @ Miss. Rashmi Vyas, 2011 2 MPLJ 680) and (Mohd. Nooman & Ors. v. Mohd. Jabed Alam & Ors, 2010 9 SCC 560)