ISHRAT JAVED Vs. ABDUL SALIM

JUDGEMENT

(1.) The Defendant-Petitioner is aggrieved by the order dated 26.05.2010 passed by the Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur, whereby the learned Magistrate has rejected the application filed by the Defendant-Petitioner under Order 1 Rule 10 Code of Civil Procedure.

(2.) It is the case of the Petitioner that Respondent-Plaintiff, Abdul Salim, had filed a suit for eviction and rent against the Petitioner. According to the Plaintiff, the property in dispute was an ancestral property. However, after partition of the said property, certain portion came in his share. He further claims that he let out the property to the Petitioner. Since the Petitioner had failed to pay rent, the Plaintiff claimed for rent as well as for eviction of the Petitioner from the rental premises. However, the Petitioner moved an application under Order 1 Rule 10 Code of Civil Procedure, wherein he had pleaded that since the property was an ancestral one, since the Plaintiff's father had left four sons, five daughters and two wives, therefore, they should have been arrayed as parties in the suit. Since they have not been made parties in the suit, the suit deserves to be set aside. However, the said application has been dismissed vide order dated 26.05.2010 by the learned Court below. Hence, this petition before this Court.

(3.) The learned Counsel for the Petitioner has vehemently contended that although the Plaintiff has claimed that the property was partitioned, he has not submitted any documentary proof to establish the said fact. Moreover, since there are other family members, they should have been arrayed as parties in the suit.