SAFIHA & ANOTHER Vs. SHAFI MOHAMMAD & OTHERS

JUDGEMENT

(1.) The petitioners are aggrieved by the order dated 27.9.2013 passed by Addl. Civil Judge (Sr. Div.) & Addl. Chief Judicial Magistrate, Chhabra District Baran, whereby the learned Magistrate has allowed an application filed by the respondent-plaintiff under Order 1, Rule 10 CPC, and has impleaded Ajaz Khan as defendant No.4 in the civil suit.

(2.) Briefly the facts of the case are that respondent No.1, Shafi Mohammad filed a civil suit for mandatory and permanent injunction before the learned Magistrate, and prayed that the petitioner be restrained by mandatory injunction from creating any hindrance in the public way. The petitioners not only submitted their written statement, but also filed a counter claim. Subsequently, the learned Magistrate framed issues. After the competition of the plaintiff's evidence, and during the pendency of the petitioners' evidence, the respondent-plaintiff filed an application under Order 1, Rule 10 read with Section 151 CPC. In the application, the respondent-plaintiff claimed that the petitioners had sold the land in dispute to their son Ajaz Khan. Subsequently, Ajaz Khan had constructed a petrol pump. Therefore, it is imperative that he be impleaded as a party. The petitioners filed their reply to the said application. However, by impugned order dated 27.9.2013, the learned Magistrate allowed the said application. Hence, this petition before this court.

(3.) Mr. Mahesh Gupta, the learned counsel for the petitioners, has vehemently contended that the petitioners have filed the said application after an inordinate delay. Even in the written statement filed by them, they had clearly pointed out that the part of land in dispute, namely in khasra No.200/1, which was with Ajaz Khan, he had constructed a petrol pump. But, despite knowing this fact, the respondent did not move any application for impleading Ajaz Khan as party defendant. Therefore, the application has been moved only as a subterfuge to delay the trial. Secondly, that Ajaz Khan is not even a necessary or a proper party. Therefore, the learned Magistrate has erred in impleading Ajaz Khan as a party defendant.