- (1.) The petitioner is aggrieved by the order dated 24.8.2012 to the limited extent that an application filed under Order 22 Rule 10 CPC by the respondent-defendant No.2 has been accepted by the Additional District Judge No.1, Ajmer.
(2.) The brief facts of the case are that after getting approval from the Municipal Board, Pushkar, (respondent-defendant No.1 before this court), the petitioner has been running a hotel in the name of "Hotel Pushkar Palace". However, subsequently, the Municipal Board cancelled the sanction plans. Therefore, the petitioner filed two different suits before the court of Additional Munsif (West) Ajmer. Both the suits were decreed in the petitioner's favour. The judgment and decree were never challenged by the Municipal Board. Therefore, the judgments attained finality. Despite the fact that the sanction plans were approved by the Municipal Board, on 22.4.2006 and 23.4.2006, the Municipal Board sealed 38 rooms of the petitioner's hotel and demolished the Restaurant, the Kitchen and the Pantry belonging to the hotel. Since, the petitioner suffered huge financial loss due to unauthorized and illegal activities of the Municipal Board, he filed a civil suit for compensation against the Municipal Board, against the then Chairman, Mr. Gopal Lal Sharma, the then Executive Officer, Mr. Nirmal Kumar Bohra, the then Sub-Divisional Officer, Mrs. Aashu Choudhary and Ex-Tehsildar, Mr. Navratan Koli. During the pendency of the suit, the petitioner filed an application under Order 8 Rule 9 CPC for taking a rejoinder on record. Moreover, the respondent No.2 filed an application under Order 22 Rule 10 CPC for deleting his name as party defendant. By a common order dated 24.8.2012, the learned Judge dismissed the petitioner's application under Order 8 Rule 9 CPC and declined to take the rejoinder on record, but allowed the application under Order 22 Rule 10 CPC and hence, deleted the name of the respondent No.2 from the array of defendants. Before this Court, the petitioner has confined his challenge to only the acceptance of the application under Order 22 Rule 10 CPC and has not argued with regard to the dismissal of his application under Order 8 Rule 9 CPC.
(3.) Mr. A.K. Sharma, the learned Senior Counsel for the petitioner, has pleaded that the learned Judge has erred in merely looking at the subject matter and the cause title of the suit, and has ignored the plaint and the allegations and the prayer made in the plaint. According to him, the plaint has to be read in toto and cannot be read in piecemeal. Drawing attention of this Court to Paras 8 and 11 of the plaint, he has submitted that specific allegations have been made against the respondent No.2, Mr. Gopal Lal Sharma and a specific prayer has been made that he, along with the other defendants, should be held severally and jointly liable to pay a compensation of Rs. 85,79,673/-. However, the learned Judge has ignored the pleadings and has given a reason which is legally untenable. According to the learned Judge, Mr. Gopal Lal Sharma has been impleaded as party defendant only in his official capacity as the Chairman, Municipal Board, Pushkar. Therefore, it would lead to a anomalous situation that every time a new incumbent comes into the office of the Chairman, Municipal Board, the person would have to be impleaded. Thus, the learned Judge has deleted the name of Mr. Gopal Lal Sharma as defendant No.2. But if the same logic were to be extended then even other defendants equally would have to be deleted. This would be against the very tenor of the plaint where specific allegations have been made against the defendants not in their official capacities but in their personal capacities as individual. Hence, the learned Judge has erred in ignoring the tenor of the plaint and deciding the application in favour of the defendant No.2. Thus, the learned Judge has erred in exercise of her jurisdiction.;