Managing Committee Gurdwara Sahib vs Nagar Council and Others

L.N. Mittal, J.—Plaintiff-Managing Committee Gurdwara Sahib has filed this revision petition under Article 227 of the Constitution of India, assailing order dated 13.12.2012 Annexure P-1 passed by the trial Court. The trial Court by impugned order Annexure P-1 disposed of five applications. But in the instant revision petition, the plaintiff has challenged the said order qua three applications only i.e. application Annexure P-8 filed by respondent no.3-Punjab Wakf Board, application Annexure P-10 filed by the plaintiff and application Annexure P-12 filed by defendant-respondent no.2. Plaintiff-petitioner has filed suit against respondents no.1 and 2 (Nagar Council, Sunam and Tehsildar Sunam) only as defendants vide plaint Annexure P-2 claiming the following relief:

It is, therefore, prayed that a decree for permanent injunction to the effect that the defendants be restrained from claiming any right in the land measuring 17 Kanals 18 Marlas comprising of Khewat No. 1557/1201 Khatauni No. 2536 Khasra No. 632 Min (17-18) situated in the revenue estate of Aali Patti Sunam-B as per Jamabandi for the year 2004-05 and from interfering in the management and possession of the plaintiff over the land mentioned above, may kindly be passed in favour of the plaintiff and against the defendants with costs. Any other relief which the Hon''ble Court may deem fit and proper be also granted to the plaintiff.

Respondent no.3-Punjab Wakf Board moved application Annexure P-8 under Order 1 Rule 10 of the CPC (in short, CPC) for impleading it as party alleging that respondent no.3 is owner of the suit property and lease period of the plaintiff has expired and therefore, respondent no.3 being owner of the suit property, is required to be impleaded as party to the suit. Plaintiff by filing reply Annexure P-9 opposed the aforesaid application and pleaded that plaintiff is lessee over the suit land under respondent no.3 since the year 1978.

Learned trial Court vide impugned order Annexure P-1 has allowed application Annexure P-8 and has ordered impleadment of respondent no.3 as defendant no.3 to the suit.

I have heard learned counsel for the parties qua aforesaid part of the impugned order.

Counsel for the plaintiff-petitioner contended that the plaintiff is not disputing the ownership of respondent no.3 over the suit land and plaintiff is not claiming any relief against respondent no.3 and therefore, respondent no.3 is not proper or necessary party to the suit.

On the other hand, counsel for respondent no.3 contended that being owner of the suit land, respondent no.3 has been rightly ordered to be impleaded as defendant no.3 to the suit. It was, however, admitted that plaintiff was earlier lessee over the suit land under respondent no.3 pursuant to compromise effected in the year 1978 in a previous suit between plaintiff and respondent no.3, and plaintiff is still in possession of the suit land although plaintiff''s lease period has expired and, therefore, possession of the plaintiff is illegal and unauthorized.

I have carefully considered the matter. Plaintiff has pleaded that it is lessee over the suit land under respondent no.3-Wakf Board. Plaintiff is admittedly in possession of the suit land, irrespective of whether its possession is as lessee or its lease period has expired. Consequently, respondent no.3 even as owner of the suit land cannot be said to be proper or necessary party to the suit when the plaintiff is not claiming any relief against respondent no.3. Since plaintiff is in established possession of the suit land at least since the year 1978 i.e. for almost 35 years, even respondent no.3 as owner of the suit land has no right to dispossess the plaintiff from the suit land except in due course of law, even if plea of respondent no.3 that lease period of plaintiff has expired is assumed to be correct for the sake of argument only.

Keeping in view the aforesaid circumstances, respondent no.3 cannot be said to be proper or necessary party to the suit in view of the pleading of the plaintiff and the admitted fact of his possession over the suit land and in view of the fact that plaintiff is not claiming any relief against respondent no.3. Plaintiff is dominus litis. The plaintiff is opposing impleadment of respondent no.3 as party to the suit. Consequently, respondent no.3 could not be impleaded as party to the suit unless it is found to be necessary party to the suit. However, keeping in view above circumstances, respondent no.3 cannot be said to be proper party much less necessary party to the suit for its proper adjudication.

Resultantly, impugned order, to the extent of allowing application Annexure P-8 filed by respondent no.3 for impleading it as party to the suit, is illegal and suffers from jurisdictional error and is liable to be set aside.

Now coming to application Annexure P-10 filed by plaintiff for decreeing the suit against defendant no.1 on the basis of the statement made by the Sectional Officer of defendant no.1-Nagar Council, Sunam. Statement on behalf of defendant no.1 was made by authorized official that defendant no.1 will not interfere in the suit property and dispossess the plaintiff and only legal action will be taken. Plaintiff moved application Annexure P-10 for decreeing the suit on the basis of the said statement. The said application has been dismissed by the trial Court by impugned order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that in view of the aforesaid statement made on behalf of defendant no.1, plaintiff''s suit should be decreed against defendant no.1.

The contention is misconceived and untenable. The plaintiff, in addition to seeking the relief of injuncting the defendants from interfering in management and possession of the plaintiff over the suit land, has also sought permanent injunction restraining the defendants from claiming any right in the suit land. Said part of the relief cannot be granted to the plaintiff on the basis of aforesaid statement made on behalf of defendant no.1. Counsel for the plaintiff stated that he had no instructions to give up aforesaid part of the claim of the plaintiff which has also been claimed in the plaint. Consequently, suit of the plaintiff for the aforesaid relief claimed in the plaint cannot be decreed on the basis of above statement made on behalf of defendant no.1. Application Annexure P-10 filed by the plaintiff has therefore, been rightly dismissed by the trial Court. Impugned order of the trial Court in this regard, therefore, does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India.

Now I shall deal with application Annexure P-12 filed by defendant no.2-Tehsildar, Sunam for setting aside ex parte proceedings ordered against him vide order dated 18.07.2011. It was alleged in the application that the matter came to the notice of defendant no.2 when Halka Patwari was approached for making entry of Court order in revenue record. Plaintiff opposed the application by filing reply Annexure P-13. Trial Court vide impugned order has allowed the said application.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that there was no sufficient ground for setting aside ex parte proceedings against defendant no.2.

I have carefully considered the matter. No further substantive proceedings had taken place in the suit after defendant no.2 was proceeded against ex parte vide order dated 18.07.2011 till defendant no.1 filed application dated 01.10.2011 Annexure P-12 for setting aside the ex parte proceedings. Consequently, ex parte proceeding against defendant no.2 has been rightly set aside by the trial Court except that defendant no.2 should have been burdened with some costs. Impugned order of the trial Court in this regard, therefore, does not suffer from any perversity, illegality or jurisdictional error calling for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India except that defendant no.2 should have been burdened with costs.

Resultantly instant revision petition is allowed partly. Impugned order, dismissing plaintiff''s application Annexure P-10, is upheld. Impugned order, allowing application Annexure P12 filed by defendant no.2 is modified to the extent that ex parte proceeding against defendant no.2 shall stand set aside, subject to payment of Rs. 2,000/- as costs precedent. Impugned order, allowing application Annexure P-8 filed by respondent no.3 Punjab Wakf Board, directing its impleadment as defendant no.3 to the suit, is set aside to that extent and application Annexure P-8 filed by respondent no.3 stands dismissed. However, nothing observed hereinbefore shall have any bearing on merits of the suit or rights of the parties.