Rafi Ahmed Bakai vs Smt. Nasreen Bano Bakai

U.C. Maheshwari, J.—He is heard on the question of admission. The petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 30.07.2013, passed by the 12th Civil Judge, Class-I, Bhopal in C.S. No. 377-A/2012 whereby his applications filed under Order 7, Rule 11 of CPC for dismissal of the impugned suit filed by the respondent no. 1 for declaration and perpetual injunction and under Order 1 Rule 10 of CPC to implead Nasir Ahmad and Tanvir Ahmad as defendants in the suit have been dismissed.

In the course of arguments on asking the petitioner''s counsel that on allowing his application filed under Order 7, Rule 11 of CPC, the suit of respondent no. 1 could be dismissed and in such premises such part of the impugned order dismissing the application of Order 7, Rule 11 of CPC is revisable u/s 115 of CPC, then how this petition could be entertained, on which the counsel seeks permission to withdraw this petition till the aforesaid extent regarding dismissal of the application under Order 7, Rule 11 CPC with liberty to file an appropriate revision u/s 115 of CPC to challenge the same.

Considering such prayer till the aforesaid extent the part of impugned order, without expressing any opinion on merits on the same, this petition is hereby dismissed as withdrawn by extending a liberty to the petitioner to challenge such part of order by way of revision u/s 115 of CPC.

So far other part of the impugned order regarding dismissal of application under Order 1, Rule 10 of CPC is concerned, in the course of arguments, in view of the averments of the plaint on asking the counsel that the respondent no. 1 plaintiff has not claimed any relief against the proposed defendants stated in the impugned application, then how they could be deemed to be necessary party in the impugned suit, even otherwise the respondent no. 1 - defendant being sole deminus litus of his suit has a choice to implead a person in the suit and he cannot be insisted by the other side to implead any other person as party unless compelling circumstances are available in the matter, which is not available in the case at hand, on which instead to argue further the counsel seeks permission to withdraw this petition till the extent of this order also with liberty to challenge the same subject to final judgment and decree of the trial court on arising the occasion in duly constituted appeal.

Considering such prayer, without expressing any opinion on merits on the aforesaid part, the petition is hereby dismissed as withdrawn and not pressed in this regard also but by extending a liberty as prayed by the counsel stated above. Office is directed to return the certified copy of the impugned order by retaining its photocopy to the petitioner''s counsel enabling him to file the revision, as stated in the earlier part of this order.