GIRDHARI LAL Vs. NAGAR PARISHAD

JUDGEMENT

(1.) This is a revision petition under S.115, C.P.C. against the order dt. 22-10-1981 passed by the learned Munsiff and Judicial Magistrate, Bharatpur in Civil Suit No. 36/81 accepting the application of the non-petitioner 2 for impleading him as defendant in the suit.

(2.) The plaintiff-petitioner filed a suit for issue of perpetual mandatory injunction against the Municipality, Bharatpur alleging therein that there was as Shanker Vyam Shalla owned and possessed by him since the time of his ancestors, in which the private deity Shivji, Bheruji, Hanumanji are situated. The Municipality, Bharatpur built a urinal in the portion of Vyam Shalla. Apart from this, the Municipality Bharatpur gave a notice to the petitioner dt. 21-1-81 asking him to demolish the room and chappal which stand in the Vyam Shalla contending that the land belongs to the Municipality. Therefore, it was prayed in the suit that a perpetual injunction restraining the Municipality not to demolish the construction standing on the land be issued. It was further prayed that a mandatory injunction be issued directing the Municipality to demolish the urinal. An application was filed by the non-petitioner 2 Babulal under O.1, R.10, C.P.C. praying that he is Manager/Secretary of the aforesaid Vyam Shalla and should be made party to the suit. He further stated that the land is owned by the Municipality of Bharatpur.

(3.) The contention of the learned counsel Shri D.K. Soral appearing for the plaintiff is that the petitioner has filed the suit against the Municipal and has claimed no relief against the applicant/non-petitioners 2 and whatever relief has been claimed is against the Municipality and none else. It is stated that a notice was also given by the Municipality to the petitioner that he should remove his 'Tall' within three days, otherwise it will be demolished by the Municipality. It is contended by the learned counsel that the trial court has acted with material irregularity in exercise of its jurisdiction as the non-petitioner 2 is neither necessary nor a proper party to the suit. The plaintiff-petitioner cannot be compelled to fight some person even when he has not claimed any relief against that person in his suit. It is also contended that the non-petitioner 2 has no interest in the land and clearly states that the land belongs to the Municipality, therefore, it is for the Municipality to fight out the suit filed by the plaintiff petitioner and the non petitioner 2 has no interest in the same. My attention has been drawn to the case of Ramesh Chand v. Mukhtiyar Singh 1980 Raj LW 110 . This was a suit filed by the plaintiff for declaration that the suit property belonged to him and a sale deed made by the defendants 1 and 2 in favour of defendant 3 be declared null and void against the plaintiff. One Mohan Lal alleging himself to be the Pujari of Shri Satya Sahib Virajman Mandir, Shri Satya Sahib Kumar filed an application under O.1 R.10, C.P.C. for impleading Shri Satya Sahib Kumar as party to the suit on the ground that the suit property belonged to the applicant and was in possession and the plaintiff was neither owner of the suit property nor was in its possession. It was held by this court that the trial court had committed serious illegality in exercise of its jurisdiction in impleading the non-petitioner 4 as party in the present suit as the kind of controversy raised by the non-petitioner 4 would be totally foreign to the controversy in the suit between the plaintiff and the defendants. The case of Fateharaj v. Surajroop, 1969 Raj LW 215 was a suit filed for declaration against the Municipality. An application was filed for impleading as party merely with the object of enabling them to see that it is properly defended. Such an application was rejected by this Court. In the matter of Mazhar Hussain v. Shafi Mohd., 1969 0 WLN 316, it was held that the plaintiff being generally "dominus litis" cannot be compelled to fight against some other litigation not of his own choice unless such a process was required by positive rule of law. It was held that a court has no power to join a person as party unless the court is prima facie satisfied about the plausibility of his claim. In the case of Ram Narain v. Nand Lal, 1970 Ral LW 277 it was held by this court that the Municipality was not a necessary party in a suit filed by the plaintiff against the defendant regarding encroachment of foot path approaching access of the plaintiff's shop. Shaiyad Vazir Ali v. Shaiyad Valli, 1968 0 RajLW 324 was a case in which the suit was filed by one set of Khadims and Bawarchis against another set, claiming their rights in turn to receive certain income. An application was filed by Dargah Committee requesting to be pleaded as party on the allegation that the Committee alone was entitled to receive the income. However, the application of the Dargah Committee was rejected and it was observed that it may file separate suit, if it so desired.