MITAL, CJ. - (1.) ABDUL Rahoof got a PCO booth from Telecom District Manager, Telephone Department, Jodhpur wherein he had the facilities for local dialing as also STD and ISD. While he was, operating that facility for public use, the Telecom District Manager, Jodhpur allotted another similar booth to Jahoor Khan in the same locality and when ABDUL Rahoof came to know of it he filed a suit to challenge the allotment of similar other booth in that locality and impleaded Union of India through Ministry of Tele-communication as defendant No. l and Telecom District Manager, Telephone Department, Shastri Nagar,jodhpur as defendant No. 2 and Jahoor Khan was not impleaded as defendant.
(2.) THE plaintiff filed an application for grant of temporary injunction which is supported by an affidavit dated 28th of Sept. 1991 and in that affidavit he mentioned that Jahoor Khan is about to open the PCO booth. This statement is made in para No. 1 of the affidavit. In the affidavit it is mentioned that Jahoor Khan and Anwar Khan are going to open the PCO booth whereas actually the allotment of that booth is only in the name of Jahoor Khan. THE trial court granted ad interim injunction order and when Jahoor Khan came to know of the same and because of that ad interim injunction order he could not open/operate the PCO booth, he filed an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as party to the suit so that he could oppose the suit as also the grant of ad interim injunction order. That application has been dismissed by Shri Anil Kumar Mishra, Additional Munsiff and Judicial Magistrate No. l, Jodhpur vide order dated 24th of October, 1991. THE reason given for rejection of the application is that the suit can be effectively decided in the presence of Telecom District Manager and in the absence of Jahoor Khan. It was also observed that the plaintiff is not seeking relief against Jahoor Khan and if Jahoor Khan and Anwar Khan want to seek any relief they may file a separate suit. It was further observed that the applicant has not shown how he will be adversely affected by the orders passed in the suit. Similar unconvincing reasons were given while dismissing the application. This is revision against that order. The defendants have been served and are absent despite service. Accordingly, I proceed to decide the revision ex parte. On a consideration of the matter, I am of the view the trial court failed to exercise its jurisdiction in not impleading Jahoor Khan as a defendant to the suit. It is true that in the plaint no relief was claimed against Jahoor Khan and the relief was claimed against Telecom District Manager, Telephone Department, Jodhpur and Union of India through Ministry of Tele- Communication. But, the decree he wanted was that no telephone connection in that area be given to anybody. If the matter was to rest at that then ultimately the suit for permanent injunction if was to be decreed then such an injunction could have been granted against the official defendants, but that was not at all. It appears from the plaint that he with held the fact of allotment of PCO booth to Jahoor Khan and in application which is duly supported by the affidavit, these facts were mentioned in para No. l of the affidavit by the plaintiff. Therefore, the trial court should have considered the suit alongwith application and the affidavit to find out true facts and the nature of permanent or temporary relief which the plaintiff wanted. This was clearly against the official defendahts which directly affected the rights of Jahoor Khan to get the PCO booth because it was allotted by the official defendants to him and he had deposited all the amounts and was about to get connection, which he could not get because of temporary injunction granted by the trial court. While the injunction may operate against official defendants not to grant any further fresh booth to any other person, but it directly affected the rights of Jahoor Khan, who had already been allotted booth before the filing of the suit but had not come into operation by the time the suit was filed or the injunction was obtained. Therefore, it is clear that in the suit the prime claim was against the allotment made in favour of Jahoor Khan as well and this could not be over looked by the trial court by confining his reading only to the plaint and by overlooking to the application for grant of temporary injunction which is duly supported by an affidavit and the contents of the application filed by Jahoor Khan to become a party. Jahoor Khan is directly affected by the injunction order and if this order has to become permanent by grant of decree for permanent injunction,he would be severely affected. I fail to understand how did the trial court come to the conclusion that no relief was claimed against him. At the same time the trial court says that if rights of Jahoor Khan are affected he may file a separate suit. Besides multiplicity of proceedings that suit may become liable to be stayed as a subsequent suit either under section 10 of the Code of Civil Procedure and if Section 10 would not apply then under section 151 of the Code of Civil Procedure with the result Jahoor Khan-will not be able to have ad interim injunction order vacated. Moreover if Jahoor Khan was to file a separate suit and was to implead Abdul Rahoof in that suit as a defendant and was to apply for grant of an order permitting Jahoor Khan to open the booth, there would have been conflict of orders also. Besides avoiding multiplicity of proceedings passing of conflicting orders were also to be avoided. Then trial court proceeds to observe that Jahoor Khan has not shown as to what prejudice or injustice would be caused to him. In para No. 2 of the affidavit filed alongwith the application for inpleading Party to the suit, all the facts have been stated which clearly go to show that for stopping the opening of booth by him, he alone would be affected and the official defendants were restrained not only from giving operational benefits to Jahoor Khan but also from allotting fresh PCO booth to anybody else in this locality. Non granting of fresh allotment of booth to anybody else does not affect Jahoor Khan, non commissioning of the both allotted to him directly affects him and, therefore, he was not only a proper party but was a necessary party for the effective decision of the suit.
(3.) FOR the reasons given above, I am of the view that the trial court failed to exercise its jurisdiction and erred in law in rejecting the application of Jahoor Khan for being impleaded as a defendant. Accordingly, the revision is allowed, order of the trial court is set-aside and the application filed by Jahoor Khan under Order 1 Rule 10 of the Code of Civil Procedure is allowed and he is ordered to be impleaded as a defendant to the suit. It would be open to Jahoor Khan to file an application' for vacation/ modification of ad interim injunction order even without waiting for the date to file written statement. If that application is filed, the trial court will hear arguments within three weeks of the filing of the application of-course after notice to the plaintiff and pass orders on that application within a week thereafter. ;