MOHAMMAD RAFI RAIN Vs. MD. HANIF

JUDGEMENT

(1.) The instant civil miscellaneous petition has been filed under article 227 of the Constitution of India for quashing the order dtd. 3/2/2022, passed by learned Civil Judge/ (Jr. Division) I, Palamau at Daltonganj in Title Suit No. 64 of 2010 whereby and whereunder the Court below has rejected the application of the petitioner under Order I Rule 10 (2) CPC for impleading as a party defendant in the said suit.

(2.) Learned counsel for the petitioner/ intervener submitted that while passing the impugned order the learned Civil Judge Junior Division has failed to properly appreciate the facts and the law involved in this case and arrived at erroneous conclusion. The court below should have held that the intervener applicant has right, title, interest and possession over the suit land inherited from his father Mohammad Sheikh Abdul Rahman along with other family members including the defendant joined in this case namely, Wasi Ahmad respondent no.2, own younger brother of the intervener/applicant. It is admitted by plaintiff that originally the suit land belong to late Abdul Rahman but it has been falsely pleaded that said Sheikh Abdul Rahman executed a "Bazidawa" in the year 1940 by leaving and relinquishing his entire interest from the suit land in favour of one Sekhawat Mukeri. It is also pleaded by plaintiff that he has purchased the suit land appertaining to Khata No. 342 Plot No. 1108 admeasuring area 3 decimal in Mouza Japla Dharhara from the legal heirs and descendants of said Sekhawat Mukeri namely, Salamat Mukeri through registered sale deed in the year 2008. It is further submitted that in absence of petitioner only defendant Wasi Ahmad (Respondent No. 2) encroached the suit land and house and forcibly acquired possession. It is further submitted that intervener/ petitioner has also paid land revenue to the State and Jamabandi is opened in the name of his father. In this regard rent receipts annexure 1 series in respect of land pertaining to Khata No. 342 Plot No. 1108 area 3 decimal up to year 2008, 2009 and 2010 have been filed. The petitioner is a necessary party to the suit and without impleading him, no effective and executable decree can be passed in this case. Due to non-impleading the applicant as defendant in the suit he would suffer great prejudice and irreparable loss. It is also submitted that prior to filing the application before court below the petitioner had no knowledge about the pendency of the suit but as soon as he came to know about the pendency of suit and ill motive of the plaintiff he filed the petition under Order I Rule 10 (2) CPC before the learned court below and such type of application can be filed at any stage of the proceeding. Hence, delay cannot be a ground for rejection of application of the petitioner, hence, impugned order is devoid of merits and fit to be set aside.

(3.) Per contra, learned counsel for the plaintiff/respondent no.1 has contended that the learned court below has rightly rejected the application of the petitioner under Order 1 Rule 10 (2) read with Sec. 151 CPC which was filed at belated stage of the suit after recording evidence of the plaintiff and the case was fixed for defendant evidence. The impleadment of petitioner would entail De Novo Trial of the suit. In the present case the own brother of the present petitioner namely, Wasi Ahmad is defendant and contesting the suit. The plaintiff was dispossessed by Wasi Ahmad, hence he has instituted this suit only against him and has claimed no relief for any cause of action against the present petitioner. The intervener /petitioner is neither necessary party nor proper party of the suit and the plaintiff in a suit commanding Dominus Litis is at liberty to choose the person from whom he wishes to litigate against and he cannot be compelled to choose a person against whom he does not choose relief, hence the application of petitioner has rightly been rejected by the learned court below. There is no illegality or infirmity in the impugned order calling for any interference and this petition being devoid of merits is fit to be dismissed.