ORDER :

(Nupur Bhati, J.)

The present writ petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers:-

"A] By an appropriate writ order or direction the order impugned dated 30.05.2018 (Annex.5) passed by the Additional District Judge No.2, Nimbaheda District Chittorgarh may kindly be quashed and set aside.

B] By an appropriate writ order or direction, the application of the petitioner under Order 6, Rule 17 CPC may kindly be allowed as prayed for.

Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioner."

2. The facts relevant for the present controversy are that the respondent Nos.1 to 4 - plaintiffs filed a suit for preemption being Civil Original Suit No.45/2016 against the petitioner-defendant and respondent No.5 in which it was averred that the respondent Nos.1 to 4-plaintiffs and respondent No.5-defendant No.1 belong to the family of deceased Chhoga Lal, who was having a property at Nimbaheda which was never partitioned amongst five sons of Shri Chhoga Lal as respondent No.1-defendant No.1 Bhanwar Lal sold two rooms from the disputed property to the petitioner-defendant No.2 through registered sale-deed dated 26.11.20212 and as the respondent Nos.1 to 4-plaintiffs are having preemptory right over the said property and, thus, they are entitled to purchase the said property for the amount mentioned in the sale-deed.

3. The petitioner-defendant No.2 filed written statement and denied the right of preemption to the respondent Nos.1 to 4- plaintiffs and also denied to have sold the property without information to the respondents-plaintiffs and since they were not interested to purchase the property, therefore, it was sold to the petitioner-defendant No.2.

4. Thereafter, based on the pleadings of the parties, issues were framed and the matter was posted for evidence of the plaintiffs. At this stage, the petitioner-defendant No.2 moved an application under Order 6, Rule 17 CPC praying thereby to add new para No.9 in the additional pleas of written statement and further submitted that all the legal heirs of Chhoga Lal have not been impleaded as plaintiffs in the suit and thus, the suit is liable to be dismissed on the ground of non-joinder of necessary parties.

5. The respondents-plaintiffs filed reply to the application aforesaid and contended that the suit is not for partition and all the legal heirs of deceased Shri Chhoga Lal are not necessary party to the suit.

6. The learned Additional District Judge, No.2, Nimbaheda (hereinafter referred to as 'the learned court below') dismissed the application filed by the petitioner-defendant vide order dated 03.05.2018. Hence, this petition.

7. Learned counsel for the petitioner submitted that the learned court below has committed grave error in dismissing the application of the petitioner-defendant. The suit has been filed for preemption and in the plaint, it was admitted by the respondents-plaintiffs that the property belonged to Chhoga Lal, who was having five sons and the property was not partitioned and in a suit for preemption, all the legal heirs are necessary parties. The learned court below did not consider this aspect of the matter and dismissed the application in a mechanical manner. He placed reliance upon the judgment of this Court at Jaipur Bench in the case of Laxmi Narayan v. Poonam Chand [(1998) 2 RLW (Raj.) 1186].

8. Per contra, learned counsel for the respondents-plaintiffs submitted that Order 1