H.R.Sodhi, J. - (1.) THIS revision petition is against the order of Sub Judge 1st Class, Ambala Cantt., who allowed a preliminary objection raised by the Defendant and directed that the Union of India be impleaded as a party.
(2.) FACTS as are necessary for the decision of this petition may be stated in a narrow compass. The Plaintiff claims to be a tenant of certain premises situate in Ambala Cantt. and using the same in connection with his motor business for the last 45 years. It is alleged that on the southern side of the premises occupied by the Plaintiff, there is a regular passage to enter the workshop from the road side and also a by -pass from the Rai market side. The Plaintiff does not claim and ownership rights in these passages which belong to the Union of India. It appears that the Defendant society has started construction of some school and is building boundary walls for the same. The Plaintiff feels aggrieved as it is alleged that the construction raised by the Defendant will block the passage to the workshop. It is, of course, stated by the Plaintiff that the right of passage having been enjoyed by over 45 years, is in the nature of an easement. No issues on merits were framed and only the preliminary objection raised by the Defendants pleading that the Union of India was a necessary party, has been disposed of. Mr. Sarin, learned Counsel for the Plaintiff strenuously urged that the Sub Judge by his impugned order committed gross illegality or at least material irregularity in the exercise of his jurisdiction by directing a party to be impleaded, which according to the Plaintiff was not a necessary party. There is substance in this contention. The trial Court has not come to any conclusion that the presence of the Union of India is necessary before it in order to decide effectually and completely the rights of the parties. If such were the situation, it was open to the Court to order a person to be impleaded under Order 1 Rule 10 of the Code of Civil Procedure, no matter whether the Plaintiff agreed to that or not. The circumstances of the instant case are, however, different. The Plaintiff is seeking relief against the Defendants for their allegedly obstructing certain right of passage and the cause of action as stated in the plaint, is only against the Defendants, who are said to be responsible for the infringement of the right. There is nothing to show at the present stage of the proceedings as to whether the passages, which are being obstructed, are public streets or private property of the Union of India. It is not for a Court to insist on the Plaintiff to implead a particular person as a Defendant when he does not choose to do so. The well known rule that the Plaintiff is the dominus litis has a clear significance. No one can be compelled to file a suit against a person against whom he does not want to proceed. Where the Plaintiff does not implead a necessary party, more so, when an objection has been raised by the Defendant, and allows the proceedings to be continued, he takes the whole risk. If it ultimately turns out that necessary parties are not before the Court, the suit is bound to end in dismissal. The proper procedure in such circumstances would have been to frame necessary issues arising out of pleadings ot the parties and this could also include an issue as to whither the Union of India was a necessary party. The preliminary issue now decided by the trial Court is not one which could reasonably be disposed of without recording evidence.
(3.) FOR the foregoing reasons I allow the revision petition, set aside the order of the Sub Judge as passed by him on 15th of January, 1969, directing the Union of India to be impleaded as a party and order that the case be disposed of on merits. Parties have been directed to appear before the trial Court on 18th of November 1969. There will be no older as to costs.;