MEERA RANI Vs. GHANSHYAM SHARMA

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner is challenging the pregnability of the impugned order (Annexure p-8), dated 28-9-04 passed by the Additional Civil Judge Class I, Ashoknagar in civil Suit No. 665-A/1998 whereby the application under Order 1 Rule 10 (2) of cpc filed on behalf of the defendant Nos. 1 and 2 has been allowed and Smt. Sunita and Dr. Sushil Kumar Viswas have been directed to be impleaded as defendants.

(2.) IT has been vehemently contended by Shri Aniket Nayak, learned counsel for the petitioners that plaintiff is : dominus litus and he cannot be forced to implead a particular person as a party against whom he does not want any relief and therefore the Trial Court erred in substantial error of law and has also acted illegally with the material irregularity in allowing the application filed under Order 1 Rule 10 (2) of CPC. To bolster his contention, learned Counsel for the petitioners has placed heavy reliance on the decision of this Court in baijnath Vs. Slate of M. P. and others, 1972 MPLJ 11.

(3.) ON the other hand, Shri H. K. Shukla, learned Counsel appearing for the defendants/respondents, has submitted that as per the case of the plaintiff, Sunita who has been directed to be arrayed as party as defendant in the civil suit is dead. However, indeed, she is alive and if that is the position, the learned Trial Court did not err in directing the plaintiff to implead Smt. Sunita viswas and Dr. Sushil Kumar Viswas as party to the suit as defendants. In support of his contention, learned Counsel heavily placed reliance on the provision of Order 1 Rule 10 of CPC.