1994 Supreme(Raj) 344
Rajasthan High Court
Honble Gokul Cshand Mital, CJ.
Draupadi (Smt.) - Appellant
Versus
Narayan and Another - Respondents
S.B. Civil Revision No. 580 of 1991
Decided On : August 23, 1994
Y.D. Kalla, for Petitioner A.L. Chopra, for Respondent
Headnote:C.P.C., Order 39, Rule 4 and Sec. 115 — After adding new party the trial court has to consider the matter afresh as the new party has brought more facts an record — The new party is having interest in the disputed land — Application u/o. 39 Rule 4 dismissed wrongly — The entire matter is remanded to the trial court to decide the same afresh. (Para 6 & 8) Revision allowed
Act Referred
(2). It is not disputed that on 4th of March,1983, the UIT sold to Smt.Draupadi-petitioner,a strip of land sandwiched between the residential house of SmtDraupadi and the public road and from this road,Smt.Draupadi had access to her house through this land only.
(3). Narayan, who is respondent in this revision, filed two suits. The first suit was filed against the UIT to claim ownership of the strip of land which was sold by UIT to Smt.Draupadi and also sought temporary injunction. The other suit was filed on 4.9.1983 to pre-empt the sale made by the UIT in favour of Smt.Draupadi.
(4). In the first suit against the UIT, Smt.Draupadi was not made party whereas UIT was also made party in the suit for pre- emption. In the suit filed against the UIT, Narayan obtained order of status quo regarding possession and later on filed application that UIT had disobeyed that order and secured another order under section 151 of the Code of Civil Procedure to get the restoration of possession of the land from the UIT.
(5). When Smt. Draupadi came to know that pursuant to the aforesaid order, possession of the site in dispute is to be restored to Narayan, she filed two applications, one to become party to the suit and another under order 39 Rule 4 C.P.C. for vacation of the injunction Order which was passed by the court below against the UIT. In the applications, Smt.Draupadi had stated about the concealment of material facts, mis-statement of facts by Narayan and particularly stated that filing of suit for pre-emption by Narayan against Smt.Draupadi was material for deciding the interim and final dispute between the parties.
(6). The trial court impleaded Smt.Draupadi as a party to the suit, but the application under Order 39 Rule 4 C.P.C. was dismissed by observing that the matter has already been considered in detail on two earlier occasions vide orders dated 6.1.1984 and 9.1.1984. This clearly goes to show that the trial court did not consider the matter afresh after Smt.Draupadi had brought more facts on record and after she had become party to the suit.
(7). After sale.UIT was left with no interest in the land in dispute and it was Smt.Draupadi alone who had to contest and she could contest only if she was made party to the suit. The two orders which resulted in dismissal of her application were passed at a time when true facts were not before the court nor Smt.Draupadi was a party. The filing of the suit for pre-emption might come to the rescue of Smt. Draupadi to take the plea of estoppel against Narayan. Once Narayan wants to pre-empt the sale made by UIT in favour of Smt.Draupadi, it can reasonably be argued by Smt. Draupadi that Narayan could file a suit for pre-emption only if he accepted the sale made in favour of Smt.Draupadi as a good sale.
(8). Without expressing any opinion on the rival contenions of the learned counsel for the parties and on the merits of the case, I consider it just and proper to remand the entire matter to the trial court to decide the same afresh.
(9). Accordingly, the revision is allowed, order of the court below dated 26th of March,1991 is set-aside and the matter is remitted to the trial court to decide afresh both for interim and final purp