Gopal Krishan Vyas, J. - (1.) HEARD learned counsel for the parties. In this writ petition filed under Arts. 226 and 227 of the Constitution of India, the petitioners are challenging validity of the order dt. 05.11.2012, by which, the trial Court rejected their application filed under Order 1 Rule 10 CPC in a suit filed by the respondent -defendants against their brother Haji Mohammed.
(2.) LEARNED counsel for the petitioners submits that initially the shop in question was rented out of their father Shri Gafoor Ji and after his death all the three sons including Haji Mohammed were pursuing their business on the said premises and this fact was brought to the notice of trial Court in the reply filed by the defendant Haji Mohammed. Thereafter, a rejoinder was filed by the respondent -plaintiffs, in which, the said fact was refuted. Learned counsel for the petitioners further submits that being legal successors of late Gafoor Ji all the three sons were pursuing business in the shop in question, therefore, the suit was to be filed against all the three sons of late Gafoor ji, but respondent -plaintiffs preferred the suit for eviction only against Haji Mohammed and not against the applicant, therefore, it is felt necessary by the applicant to file an application under Order 1 Rule 10 CPC, but learned trial Court rejected the said application on illegal ground that they did not appear before the Court as witnesses, therefore, they are not necessary party in the suit.
(3.) IT is also argued by the counsel for petitioners that the grounds upon which the application has been rejected are not tenable for the simple reason that the fact of pursuing business by the petitioners alongwith Haji Mohammed was already brought to the notice to the trial Court, but the trial Court did not consider the said fact while deciding the application filed by the petitioners under Order 1 Rule 10 CPC, therefore, the order impugned may be quashed.;