GOPAL SHARMA Vs. RAM PRASAD

JUDGEMENT

(1.) THE plaintiff -petitioners are aggrieved by the order dt. 05.09.2013 passed by Additional District Judge No. 17, Jaipur Metropolitan, Jaipur whereby the learned Judge has allowed the application filed by the respondents under Order 1 Rule 10 CPC. The brief facts of the case are that the petitioner had filed a civil suit for cancellation of registered sale -deed dt. 28.03.1971, and for permanent injunction before the Court. Initially, on an ex -parte basis the suit was decreed in his favour by order and judgment dt. 25.04.2005. Subsequently, the Society namely the Jaipur Bhawan Nirman Sahkari Samiti, filed an application for setting aside the ex -parte judgment. Accepting their application, the ex -parte judgment was set aside, and the suit was retried. During the pendency of the suit, respondent Nos. 6 to 17 filed an application for impleadment as party in the year 2012. For according to them, they came to know about the pendency of the suit on 21.07.2012. However, as neither the respondents, nor their counsel was present before the learned Judge on 01.05.2013, therefore, the application for impleadment was dismissed for non -prosecution. Application for restoration was filed. However, on 29.07.2013 the said application was dismissed as not pressed. Subsequently, a second application for impleadment was filed by respondent Nos. 6 to 17. After hearing both the parties, by order dt. 05.09.2013 the said application has been allowed.

(2.) RELYING on the case of Satyadhyan Ghosal & Ors. vs. Smt. Deorajin Debi & Anr., : AIR 1960 SC 941 and on the case of Suganchand vs. Premchand [S.B. Civil Revision Petition No. 312/1996 -decided by this Court on 02.01.1997], the learned counsel has contended that the second application for impleadment was not even maintainable as the first application had already been dismissed by the learned Judge. Despite the fact that this contention was raised before the learned Judge, the learned Judge has failed to address this submission. Secondly, the Society has gone into liquidation; a Liquidator has already been appointed. Since the Society is a legal entity different from the members, since the Society is already arrayed as respondent No. 5, the Society is free to represent the interest of respondent Nos. 6 to 17. Therefore, there was no need to implead respondent Nos. 6 to 17 as party defendant in the case. Thirdly that according to the report of the Auditor, the allotment of plots to respondent Nos. 6 to 17, has already been cancelled. Therefore, respondent Nos. 6 to 17 no longer have any interest in the suit property. Hence they are neither a necessary, nor a proper party to the suit. Therefore, the learned Judge has committed an illegality by permitting them to be impleaded as party defendant.

(3.) THE first contention raised by the learned counsel is unacceptable. For as mentioned above, the first application was dismissed for non -prosecution. It was never decided on merits of the case, but was in fact dismissed in limine. Even their application for restoration was not decided on merit, but was dismissed "as not pressed". Thus, the case was never decided on merit, but was dismissed in limine. Therefore, applicants -respondent Nos. 6 to 17 were certainly entitled to filing a second application as their first application was never dismissed on merit. The case of Satyadhyan Ghosal & Ors. (supra) is inapplicable to the present case as in the said case the suit was not dismissed in limine but was decided on merit. Similarly, the case of Suganchand (supra) is equally distinguishable on the factual matrix of this case. Hence, neither of the cases come to the rescue of the petitioner.