KANWAL SINGH Vs. KRISHN PAL SINGH
HIGH COURT OF UTTARAKHAND
Krishn Pal Singh
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(1.) Present petition has been filed by the petitioner for quashing the order dated 30.04.2011 passed by the trial Court and the order dated 22.09.2011 passed by the Revisional Court. Further prayer has been made to allow the impleadment application.
(2.) Brief facts of the case, as narrated in the writ petition, are that petitioner herein, as a plaintiff, instituted Original Suit No.139 of 2002 "Kanwal Singh Vs. Krishna Pal" in the Court of Civil Judge (Junior Division), Haridwar for prohibitory injunction inter alia on the ground that plaintiff had purchased the disputed property from Ghashitu Singh through registered sale deed dated 11.09.1999 and is in possession of the same, whereupon defendant intends threat to interfere. The defendant filed his written statement, denying the plaint averments and contended that disputed property has been purchased by his son Udham Singh from Shayam Singh and Ajpal Singh through registered sale deed dated 06.07.2002. The aforesaid suit for injunction was dismissed vide judgment and decree dated 10.11.2006 inter alia on the ground that plaintiff had failed to prove his case. Against the judgment and decree of dismissal dated 10.11.2006, petitioner preferred Civil Appeal No.80 of 2006 "Kanwal Singh Vs. Krishna Pal" before the District Judge, Haridwar, challenging findings recorded by the trial Court on different grounds. During the pendency of appeal, few constructions were raised over the disputed property, which constrained the appellant /plaintiff to seek amendment. Amendment was allowed by the Appellate Court and vide judgment and decree dated 18.07.2007, two additional issues were framed and the matter was remanded to the trial Court for deciding the matter afresh. The findings recorded by the trial Court in judgment dated 10.11.2006 were set aside. Thereafter, on 24.02.2011 an impleadment application was moved by the petitioner/plaintiff seeking the impleadment of Udham Singh S/o Shri Krishna Pal, as defendant no.2 on the basis of sale deed dated 06.07.2002, seeking consequential amendments supported by affidavit. The defendant opposed the impleadment application and filed objections against the same inter alia on the ground of delay. On 30.04.2011, the trial Court rejected the impleadment application filed by the petitioner/ plaintiff. Aggrieved by the rejection of impleadment application, Civil Revision No.48 of 2011 "Kanwal Singh Vs. Krishna Pal" was filed before the District Judge, Haridwar on the ground that rejection of impleadment application, on the ground of delay, is not sustainable, as the purchaser is the proper and necessary party and due to the lack of legal advice to implead the purchaser, the impleadment application could not be moved. On 22.09.2011, the District Judge, Haridwar rejected the civil revision on the ground that the case is fixed for arguments and is at final stage. Impleadment was rejected on the ground of delay. Aggrieved by the order dated 30.04.2011 passed by the trial Court and confirmed by the Revisional Court through order dated 22.09.2011, present writ petition has been filed by the petitioner.
(3.) Shri Siddhartha Singh, learned counsel for the petitioner submitted that both the Courts below failed to discharge the jurisdiction vested in them, according to law, by rejecting the impleadment application moved by the plaintiff for impleadment of purchaser of disputed property. He submitted that both the Courts below fell in error in underestimating the ambit and scope of Order 1 Rule 10 of C.P.C., wherein a proper and necessary party is required to be impleaded as a party, so as to adjudicate the dispute once for all and further to avoid the multiplicity of proceeds. He further submitted that the Courts below failed to appreciate the requirements of Order 1 Rule 10 of C.P.C., according to which the Courts are empowered to add and/or to delete any party from the array of the parties, suo-moto or on the application of the party and/or on the issue of non-joinder and misjoinder of party. He argued that the Courts below ignored the important genesis that despite the averment of sale deed dated 06.07.2002 in favour of Udham Singh in written statement of defendant, no issue pertaining to non-joinder was pressed and/or framed, whence it is the duty of the Court to frame proper issues. He contended that both the Courts below wrongly blamed the plaintiff for not impleading the purchaser overlooking the absence of framing of issue of non-joinder and overlooking the suo-moto powers of the Court for direction of impleadment of necessary and proper party. He argued that both the Courts below over stressed on the ground of delay, forgetting the fact that the delay can be compensated and cannot be a ground to non-suit, a party. He contended that the Courts below failed to appreciate that in absence of proper and necessary party, there can be no final adjudication and in case of nonimpleadment of purchaser of disputed property, a fresh suit would be required, which would lead to multiplicity of proceedings. Learned counsel for the petitioner argued that both the Courts below committed manifest error of law by rejecting the impleadment application and there has been dereliction of duties. He submitted that the decision making process of both the Courts below is vitiated in the eyes of law and cannot be sustained.;
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