S M IQBAL Vs. FIRDOUS AHMAD SHAH

JUDGEMENT

(1.) THE dispute in this civil revision relates to impleadment of party. By the order impugned, at the instance of the plaintiff -respondent, the petitioner has been added as defendant. He has moved this Court for setting aside the order.

(2.) TO appreciate the controversy, the factual background of the case may briefly be stated. On 16th April, 1981 Srinagar Municipality (also known as Srinagar Municipal Committee) allotted a shop to the plaintiff, Firdous Ahmad Shah, (hereinafter referred to as respondent). Soon after, on the ground of violations of the terms of allotment, on 21st April, 1981 the allotment was cancelled. On 6th May, 1981 respondent filed suit for perpetual injunction against the Municipality and obtained order of statusquo. Complaining that despite the statusquo order the shop was demolished and the goods were taken away, the respondent filed application for contempt against the Municipality and its Executive Officer. On 22nd May, 1981, he filed application for recovery of the goods and debris of the shop. On 18th April, 1983 the respondent, with leave of the court, filed amended plaint seeking relief of mandatory injunction and compensation for the loss of goods and demolition of the shop. On l6th April, 1984, he filed another application seeking return of the goods from Srinagar Municipality/Development Authority which had been impleaded as a party defendant in the amended plaint. On 16th August, 1984 the Municipality took a stand that it had no knowledge about the goods. The respondent contested the stand of the Municipality and produced certain documents in support of his case. On 19th November, 1988 he filed application seeking direction to the petitioner for return of the goods alleging that it was he who had taken away the goods after demolition of the shop. It may be mentioned that the petitioner at the relevant time was holding the post of Collector under Srinagar Municipality. On 13th March, 1989, the court passed an order to that effect. The petitioner challenged the order in this Court in civil revision No. 29/1989 which was dismissed as not maintainable on 18th August, 1989. Application seeking review of the said order was rejected on 23rd October, 1989. The petitioner, thereafter, moved the Supreme Court in SLP (civil) No. 13455 of 1989 which was dismissed on 17th July, 1990, observing that the petitioner may pursue such remedy as available to him in law in the appropriate court. The petitioner, thereafter, filed appeal against the aforesaid order dated 13th March, 1989 alongwith application for condonation of delay as the appeal had become time barred by then. On 18th February, 1993 the condonation application was rejected by the District Judge, Srinagar. The petitioner approached this Court in civil revision No. 8/1993 which was dismissed on 5th July, 1994. The petitioner again moved the Supreme Court in SLP(Civil) No. 21243 -44 of 1994 which was disposed of on 27th July, 1995with certain observations. I shall refer to the said observations later at the appropriate place in this judgment. On 16th December, 1995 the respondent filed application for impleadment of the petitioner which was allowed by order date 5th July, 1997 - - giving rise to this revision.

(3.) MR . Z.A. Shah, learned counsel for the petitioner, submitted that the suit was initially filed against the municipality for mandatory injunction in the wake of the apprehended demolition of the shop, and even as per the amended plaint, the respondent sought the relief of mandatory injunction to restore the demolished shop alongwith the site, and the stocks in trade comprising of cosmetics and hosiery articles. No relief was sought against the petitioner and he was no made party. In the light of the stand of the Municipality/ Srinagar Development Authority on an interlocutory application filed by the respondent, order was passed directing the petitioner to return the goods allegedly taken away by him after demolition of the shop; even though he was not party to the proceedings. He was, in fact, cited as a witness in support of the application seeking recovery of goods from the Municipality/Development Authority. This Court dismissed the civil revision against the said order on a technical ground that the revision was not maintainable. Though the Supreme Court at that stage declined to interfere and dismissed the SLP, in the second SLP preferred by the petitioner the Supreme Court vide order dated 27th July, 1995 observed that "this is a proper case where the order impugned herein and the proceedings concerning it are stayed pending disposal of the suit" and thus protected the interest of the petitioner. The application for impleadment of the petitioner at this stage was not only mala fide but also time barred as in view of the provisions of sub -rule (5) of Rule 10 of Order I of the Code of Civil Procedure read with section 22 of the Jammu and Kashmir Limitation Act, a person cannot be added as party to the suit beyond the period of limitation, and the suit is deemed to have been instituted against him from the date he is added as party to the suit. Mr. Shah submitted that in any view of the matter, the petitioner is neither a necessary party nor a proper party to warrant his impleadment in terms of Order I Rule 10(2) of the Code. In support of the submission, he placed reliance on Ramprasad Dagaduram v. Vijaykumar Motilal Hirakhanwala, AIR 1967 SC 278.