Vineet Kishore Jain and Another vs Vandana Agarwal and Others

Tarun Agarwala, J.—Heard Shri Kshitij Shailendra, the learned Counsel for the plaintiff-applicants and Shri Amit Saxena, the learned Counsel for O. P. No. 1.

The plaintiff-applicants filed a suit claiming that they had a valid lease deed in their favour of plot No. 430, Civil Lines, Moradabad, and that, the defendant-opposite party Nos. 1 and 2, who are arrayed as O.P. Nos. 2 and 3 in this revision, are interfering in their possession. Consequently, a suit was filed claiming the following reliefs:

A. That by a permanent injunction defendants Nos. 1 and 2 be restrained from interfering in the peaceful possession of the plaintiffs residence at 430 Civil Lines, Moradabad either themselves or through their authorised persons or nominee or agents or any other person or persons acting for or on behalf of defendants Nos. 1 and 2 or claiming through them and further promise for transferring of any part of plot No. 430 Civil Lines, Moradabad misrepresenting that they are owner of the said plot.

B. That plaintiffs be declared sole lessees to entire plot No. 430 Civil lines, Moradabad measuring 1464.60 Sq. Mt. on the basis of whole consideration passed over to the defendant No. 3 by plaintiff No. l and further that the names of defendants Nos. 1 and 2 were fictitiously entered in the lease deed dated 29-12-89 registered in the office of Sub Registrar, Moradabad at Sl. No. 1 Khand 19 page 135/138 and at addtional serial No. 9628 and information to that effect be also given to sub Registrar, Moradabad and further it may also be declared that any transaction if made by the defendants Nos. 1 and 2 in respect of plot'' No. 430 Civil Lines, Moradabad shall have no binding on the plaintiffs.

Smt. Vandana Agarwal, O. P. No. 1 in this revision, filed an application for impleadment under Order 1, Rule 10 of the Code of Civil Procedure, which was allowed by the trial Court, against which, the present revision has been filed. The trial Court has held that the opposite party was a necessary party and should be impleaded.

The learned Counsel for the applicants submitted that the order of the rial Court impleading the O.P. No. 1 was patently erroneous since no relief was sought against her and that the relief was only sought against O.P. Nos. 2 and 3. The learned Counsel submitted that the plaintiffs are the dominus litus and have a right to choose their opponent. Since no relief has been claimed against Vandana Agarwal, the order of the trial Court impleading her as a necessary party was patently erroneous, which was liable to be set aside. In support of his submission, the learned Counsel placed reliance upon a decision in Furkan Ahmad Vs. Sayed Ahmed Raza and others, in which it was held that the plaintiffs being the dominus litus. having dominus over the suit, have a right and a prerogative to choose and implead in their suit as a defendant the person against whom they sought the relief. It was further held that the plaintiffs were not obliged to implead a person as a defendant in the suit against whom no relief was sought. The learned Counsel also placed reliance upon a decision in Girraj Singh v. Brijesh Goswaml and Ors. 2006 (63) ALR 887 : 2006 (5) ALJ 206. in which it was held that the plaintiff cannot be forced to implead a third person as a plaintiff and consequently directed the said third person to file a separate suit.

There is no quarrel with the aforesaid proposition laid down in the aforesaid two decisions, and in all fairness, the said judgments are not applicable to the present facts and circumstances. A perusal of the relief claimed by the plaintiffs indicates that the restraint is not only against defendant Nos. 1 and 2 but also their authorised nominees, agents or any other person, or person acting for and on behalf of the defendant Nos. 1 and 2 or claiming through them.

In the present case, Vandana Agarwal alleges that a lease deed was executed in her favour in the year 1992 by defendant Nos. 1 and 2 to the suit, who are arrayed as O.P. Nos. 2 and 3 in the present revision, and therefore, she would be vitally affected if the suit of the plaintiffs is decreed because, in that event, the decree, if any, against O.P. Nos. 2 and 3 would also operate against Vandana Agarwal.

The suit in the present case, was filed in the year 2003 whereas the lease deed was executed in 1992 in favour of Vandana Agarwal by the defendants. Consequently, a valuable right had already accrued in her favour. Consequently, any injunction granted by the trial Court restraining the defendants and their agents or any person claiming through them would vitally affect the rights of Vandana Agarwal.

In view of the aforesaid, the Court finds that Vandana Agarwal was a necessary party and was rightly impleaded by the trial Court. There is no eror in the impugned order. The civil revision falls and is dismissed summarily.