State of M.P. vs Vinayak Rao

Prakash Shrivastava, J.—Heard on I.A. No. 2283 of 2010, which is an application under Order 1 Rule 10 of the CPC read with Order 41 Rule 20 of the CPC for impleadment and I.A. No. 2282 of 2010, which is an application u/s 151 of the CPC for temporary injunction.

These applications have been filed by the Villagers of Village Hatod, Tehsil Sardarpur, Distt. Dhar, pleading that they have a right to take water on the pond situated at Khasra No. 936 in Village Hatod, Tehsil Sardarpur, which is subject matter of the present appeal.

Learned Counsel appearing for the applicants submits that the applicants had filed separate suit for declaration of their right to take water from the pond. In that suit the application for temporary injunction was rejected against which the appeal was also rejected and in the writ petition the liberty has been granted by this Court to file the application under Order 1 Rule 10 of the CPC in the present appeal. He further submitted that the villagers have customary rights to take water from the pond, therefore, they be impleaded in the present appeal and their injunction application be allowed.

Learned Counsel appearing for the Respondents submitted that the application filed under Order 1 Rule 10 CPC and also the application for injunction are misconceived. He submitted that the applicants were not party in the suit, therefore, they have no right to file such application in the appeal, their similar application was rejected by the Trial Court, they cannot initiate parallel proceedings and since they are asserting Independent right, therefore, they cannot come to the Court in the present appeal. Learned Counsel for the Respondents had relied upon several judgment m support of his submissions.

I have heard learned Counsel for the parties and perused the record.

In the present matter, the Respondents had filed suit for declaration and permanent injunction, which was decreed by the Trial Court and the decree was affirmed by the First Appellate Court. This second appeal has been admitted on 06.08.01 by formulating the substantial questions of law relating to admissibility and effect of documents Exhibits D/1 to D/22 and vesting of suit pond in government.

Under Order 1 Rule 10 the Court has the power to add a party whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. In the present matter, looking to the narrow scope of the second appeal the presence of the applicants is not necessary for deciding the question of law formulated in the appeal.

Learned Counsel appearing for the Respondent referring to the judgment of the Orissa High Court in the matter of Radhakrushna Choudhary v. Radhakrushna Mohaprabhu and Anr. reported in AIR 1971 Ori 274, submitted that a person who was not a party in the original forum cannot be added as a party in the appeal for the first time. Such an argument cannot be accepted in view of express of language of Order 1 Rule 10 (2) Code of Civil Procedure. which gives discretion to the Court to add or strike out parties "at any stage of proceedings". This expression gives wide power to add or strike out parties even at the appellate stage.

It is also worth noting that the applicants are asserting their independent right and the person who is asserting his independent right need not be impleaded as party in a pending suit. The Supreme Court in the matter of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. reported in (1992) 2 SCC 525, while considering the scope of Order 1 Rule 10 (2) of the CPC has held merer fact that fresh litigation can be avoided is no ground to allow application under Order 1 Rule 10 CPC when the applicant has no direct interest in the subject matter of the litigation and addition of the Respondent would result in substitution or addition of new cause of action which would only widen the issue required to adjudicate and settle or joining of the party would embarrass the Plaintiff or would require raising of issue not germane to suit.

The Rajasthan High Court also in the matter of Ramesh Chandra v. Mukhtyar Singh and Ors. reported in AIR 1980 (Rajasthan) 21 has held that in a suit for declaration and possession a third party claiming independent title applying under Order 1 Rule 10 CPC cannot be allowed to join since it would raise the question foreign to the controversy.

Same is the position in the present matter also. In the present matter the Respondent is claiming his title on pond against the government whereas., the claim of the applicant for taking water from suit pond is based upon easementry/customary right, which is an issue foreign to present controversy.

Learned Counsel appearing for the Respondent has also relied upon the judgment of the Supreme Court in the matter of Manish Goel Vs. Rohini Goel, and in the matter of Jai Singh Vs. Union of India and Others, wherein, it has been expressed that a person cannot be permitted to pursue the parallel remedies.

The record indicates that the independent suit C.S. No. 37-A of 2009, filed by the applicants is pending in which they are asserting their right to take water from the disputed pond. Their right will be adjudicated in their pending suit. The application under Order 39 Rules 1 and 2 in the said suit filed by the applicants has already been rejected. Appeal against that order has also been rejected and this Court while passing the order dated 10th March, 2010 in Writ Petition No. 1108 of 2010, had only granted a liberty to the applicants to file appropriate application in second appeal on the basis of the statement made by the Counsel for the applicants. In view of this, no benefit can be derived by the applicants on the basis of the order dated 10.03.10 passed in Writ Petition No. 1108 of 2010.

It is also worth noting that the applicants had moved an application under Order 1 Rule 10 of the CPC before the Trial Court on the similar ground and the Trial Court by order dated 27.01.97 had rejected the said application holding that the applicants were neither necessary party nor proper party in the present suit. The said order has attained finality. There is no change of circumstances to take a different view.

For the aforesaid reasons, the application I.A. No. 2283 of 2010 filed under Order 1 Rule 10 of the CPC cannot be allowed and the same is hereby rejected. Since the application for impleadment has been rejected, therefore the I.A. No. 2282 of 2010, which is filed by the applicants for temporary injunction as lost its relevance and the same is also rejected.