Decided on November 01,2018

Shyam Lal Patel Appellant
Rohini Ram Respondents


SUJOY PAUL,J. - (1.) This appeal filed under Order 43, Rule 1(u) of Code of Civil Procedure takes exception to the judgment dated 10.10.2011 passed in R.C.A. No.12A/2010 whereby the judgment and decree dated 29.01.2009 passed by the trial Court in Civil Suit No.140A/2007 was set aside and the matter is remitted back with certain directions.
(2.) The admitted facts between the parties are that the appellant/plaintiff filed a suit for permanent injunction against the present respondent. After completion of pleadings, the Court below framed certain issues including the issue relating to non-joinder of necessary parties (Issue No.5). After recording the evidence and hearing the parties, the suit was decreed vide order dated 29.01.2009. Aggrieved, the respondent filed the aforesaid appeal, which was allowed by impugned judgment dated 10.10.2011. The appellate Court came to hold that Smt. Urmila Devi, W/o present respondent/appellant before the Court below, was the necessary party. The matter was remitted back to implead the said person as a party and decide the matter afresh.
(3.) Shri Jai Shukla, learned counsel for the petitioner contended that Issue No.5 was answered by giving categorical findings which were based on various judgments of this Court. The plaintiff is the dominus litis of the case and, therefore, he cannot be compelled to implead somebody as party-respondent. The trial Court rightly decided the issue No.5 in favour of the appellant/plaintiff. Without disturbing the said finding, the appellate Court has erred in remitting the matter back for her impleadment. By placing reliance on 2015 (1) MPLJ 243 (Murari Lal v. Ram Kumar Ojha and another ), it is urged that the power under Order 41, Rule 23 and 23A of CPC needs to be exercised carefully and not as a matter of routine. The appellate Court has erred in remitting the matter on wholesale basis.;

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