Waheed and others vs Additional District Judge and others

Hon''ble Tarun Agarwala, J.—Heard Mr. Sharad Sharma, the learned Senior Advocate assisted by Mr. Anirudh Joshi, the learned counsel for the petitioners, Mr. Sudhir Kumar, the learned Standing Counsel for the State/respondent No. 1 and Mr. Lokendra Dobhal, the learned counsel for respondent Nos. 2 and 3.

The plaintiff filed a suit for permanent injunction against the defendants, who was his brother. This suit was filed by the plaintiff, through his attorney, holder who is none other then the brother of the plaintiff as well as of the defendants. This suit was decreed and the defendants were restrained. The said defendants filed a regular appeal and during its pendency, the attorney holder filed an application under Order 1 Rule 10 of the C.P.C. for impleadment as a defendant in the suit. The said attorney holder contended that he was originally the attorney holder of the plaintiff, but now his attorney has been cancelled and since the dispute is between the brothers, it is necessary that he should get impleaded as a defendant, so that he could protect his interest in the property in dispute. The said application was resisted by the defendants. The lower appellate court, after considering the matter, allowed the application permitting the ex-attorney holder to be impleaded as a defendant. The original defendants, being aggrieved by the said order, has filed the present writ petition.

Before the trial court, the court found that the defendants petitioners had taken a stand with regard to maintainability of the suit on account of non-joinder of necessary party, namely, that the attorney holder, who was a brother of the plaintiff as well as of the defendants was a necessary party. That stand has now been rectified and the attorney holder has now been impleaded and, therefore, the present petitioners cannot object to the impleadment of the attorney holder. It was also contended that the said power of attorney holder also appeared as a witness by the plaintiff and, therefore, he cannot now be impleaded as a defendant.

The contention of the petitioner that since he was the attorney holder of the plaintiff, he cannot now be impleaded as a contesting defendant, is patently misconceived inasmuch as an explanation has been given that the attorney holder is no longer holding the power of attorney of the plaintiff and that now he wants to be impleaded as a defendant in order to protect his interest in the property in question.

Learned counsel for the petitioners has placed reliance upon a decision of the Hon�ble Supreme Court in Rohit Singh & others V. State of Bihar (now State of Jharkhand) Reported in (2006) 12 SCC 734 wherein the Hon�ble Supreme Court held that a third party should not be impleaded in an appeal. In the opinion of the Court, the said decision is not applicable to the present facts and circumstances of the case.

In the light of the aforesaid, the Court does not find any error in the impugned order. The writ petition is, accordingly, dismissed.

Certified copy of this order shall be sent by the Registry to the court below within two weeks from today for necessary information and action.