Jasdeep Singh vs M.s. Sandhu and Others

Swatapter Kumar, J.—Assistant Estate Officer, Union Territory, Candigarh has filed this application under order 1 Rule 10 read with Section 151 Code of CPC praying that they be impleaded as a party to the afore-noticed regular second appeal Uppon notice non-applicant-Respondents filed reply taking preliminary objections with regard to the very, maintainability of the application as well as denying the averments on merits They also stated that the application was misconceived.

At the very outset it must be noticed that the regular second appeal preferred by Jasdeep Singh against the judgment and decree passed by the learned first Appellate Court was dismissed by this Court vide its order dated 23.11.1998 The order of dismissal reads as under -

I have heard the learned Counsel for the parties While issuing notice to show cause why this appeal be not admitted vide order dated 12.11.1998 a reference was made to Rule 14 of the Chandigarh (Sale of Sites & Buildings) Rules, 1960 In accordance with this rule the fragmination of the plot was not permissible. The learned Counsel appearing for Respondent has relied upon a judgment of this Court in the case of Shri Chandew Parkash Malhotra v. R.B.S Chahal (1994) R.C.R. 312 wherein the learned Judge of this Court white relying upon a judgment of the Supreme Court in Civil Appeals No. 4974 and 2305 of 1992 has observed that if there was no partition by metes and bounds and there was no fragmentation of the plot, the provisions of this rule are not attracted.

I have heard the learned Counsel for the parties. There is concurrent view taken by the learned Courts below that the partition, of the building is being done floor-wise and not of the plot by metes land bounds. The obvious result is that there is no fragmentation of the plot and there is only the distribution of the building, already construed on the said plot

For the reasons aforesaid, I find no merit in this regular second appeal and the same is dismissed.

It may further be noticed that the Hon''ble Apex Court in the cases of V.P. Malhotra vide order dated 24.11.1992 had set aside the judgment of the High Court in so far as it declared Rule 4 invalid. However, the appeal otherwise, was allowed by the Apex Court. Relying upon the above order of the Supreme Court another Bench of this Court on 4.12.1995 had permited partition in terms of bye-laws and as per the judgment and decree of the Courts below. After the dismissal of the regular second appeal the parties to the suit approached the Estate Officer, Union Territory, Chandigarh for issuing art(sic) appropriate letter and recording the ownership in terms of the decree. Obviously, the, applicants did not actually wanted to divide the plot. This request was kept pending for one reason or the other. The parties, to the suit then filed a contempt petition in the High Court Which is also stated to be pending.

4 Thereafter on 10,3.2000 nearly 15 years after the passing of the order the application under Order 1 Rule 10 as well as another application u/s 151 of the Code had been filed for modification of the order which has, already attained finally between, the parties to the suit appeal.

This Court is primarily concerned with the merits of the very maintainability of the application filed by the applicant under Order 1 Rule 10 of the Code It is an admitted case between the parties that the Chandigarh Administration was not a party to the suit or at any subsequent stage before any Court till disposal of the regular second appeal by this Court till 23.11.1998. The substance of the prayer is that the Assistant Estate Officer should be impleaded as a party and the order should be recalled. It is contended that the interpretation of Rule 14 in relation to partition should be, interpreted by this Court.

6 As already noticed, this application has been vehemently opposed by the parties to the appeal The regular second appeal was finally decided by this Court on 23.11.1998 Upon decision of the appeal, this Court has become functus officio in the matter. It is very doubtful whether the applicant is a necessary party to the appeal. The suit for partition between the parties to the lis was ,decreed by the courts below and has been affirmed by this Court on the basis of the judgments above referred The learned Counsel for the applicant has placed reliance upon the case of Neelagangabai and another Vs. State of Karnataka and others, to submit that they should be impleaded as a party. On the other hand, Teamed counsel for the non-applicants has relied upon the cases of Mir Sardar Ali Khan and Ors. v. Special Deputy Collector Land Acquisition (Industries) Hyderabad and others AIR 1973 AP 298 and Chiranji Lal and Another Vs. Bhagwan Das and Others, to contend that they cannot be impleaded as party nor their consent is required in law for the purposes of passing of a decree of partition

It is true that in Mir Sardar Ali Khan''s case (supra) a Division Bench of Andhra Pradesh had taken a view that application can be moved at any stage of the proceedings under Order 1 Rule 10(2) of the Code Once the dispute is over and Court has decided the matter, an application under Order 1 Rule 10 Code of CPC cannot be maintainable A party is not left remediless and it the Chandigarh Administration felt that it was aggreved(sic) from the judgment and decree of the Courts below, which has been in then notice for a considerable period they could have easily preferred an appeal with leave and in accordance with law But impleadment of a person in a decided matter will neither be proper not is permissible in accordance with the settled principles of law

For the leasons afore-stated, I am of the considered view that the application under Older 1 Rule 10 of the Code as not maintainable before this Court and is, accordingly, dismissed, without any order as to costs.