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2019 Supreme(J&K) 509
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sindhu Sharma, J.
Tariq Parvez Kraipak - Appellants
Vs.
Rajinder Singh Jamwal and Ors. - Respondent
CR No. 27/2016 and IA No. 01/2016
Decided On : 06-09-2019
For the Appellant :R.A. Jan, Sr. Advocate and Vikas Magotra, Advocate
For the Respondents:L.K. Sharma, Sr. Advocate and Mohit Kumar, Advocate
Headnote:
Civil Procedure Code,1908 – Section 115 and 151 – Order 1 and 2, Rule 2 and 10 - seeking implement – Land – Sales deed - Permanent prohibitory injunction restraining - Suit was filed for permanent prohibitory injunction restraining defendant, his servants, agents and representatives from interfering land owned and possessed by the plaintiff - Suit has been filed on the basis of Sale Deed executed by one registered by the Sub-Registrar - Though defendant was set ex-parte and plaintiff was directed to produce ex-parte evidence but suit remained pending for reasons indicated in minutes of proceedings till application under Order-1-Rule-10 CPC was filed on behalf of wife of defendant for being impleaded as party defendant on ground that she holds permanent leasehold rights in suit land as she is in possession of two plots each on the basis of Lease Deed registered by learned Sub-Registrar, Munsiff, Jammu - Both plots according to appellant including suit land are in her possession and she has already filed a suit for permanent prohibitory injunction, in which restraint order has been issued against plaintiff who is defendant in suit - So litigation in respect of suit land is pending in two Courts, one on basis of sale and registered and other on the strength of perpetual lease deed registered - Whether these suits can be consolidated and directed to be trite in one and same Court provided subject matter of suit is same – Held, in view of above Court is of considered opinion that applicant appears to be a necessary party in suit as otherwise there will be two decrees of two different competent Courts and even after passing of judgment dispute will not get resolved between parties and Court would also not be in a position to effectively adjudicate and settled question involved in suit - Equity demands that application is required to be allowed but since delay has not been properly explained by applicant in filing present application especially in a circumstance when applicant earlier also filed an application seeking abeyance of the order passed by this Court and this Court dismissed that application, as such application stands allowed subject to the cost to be paid by the applicant on next date of hearing - Non-applicant is directed to file amended plaint in terms of Order 1 Rule 10 CPC - Application stands disposed of and be made part of main file - Court has thus not foreclosed right, if applicant to apply for being impleaded as a party, as such, this order does not come in the way of her application for seeking implement - Lastly, even though it is a suit for prohibitory injunction, before injunction is granted, learned Trial Court has to decide question of possession so declaration of possession is implicit in the suit - So, it is not a case covered under Section 10 of CPC - Hence, three suits are consolidated under Section 151 CPC and the suit pending in the Court of Additional Munsiff, Jammu since 2008 is withdrawn and transferred to Court of 3rd Civil Subordinate Judge (Excise) Magistrate, Jammu for disposal under law - Counsel for the parties are directed to appear before the transferee Court – Application Disposed of.
JUDGMENT :
Sindhu Sharma, J.
1. This revision petition is directed against the order dated 28.03.2016 passed by the learned 2nd Additional Munsiff, Jammu in a civil suit File No. 485/2008/Civil filed by the plaintiff-Dr. Tariq Parvez Kraipak (petitioner herein). The suit was filed on 03.03.2008 for permanent prohibitory injunction restraining the defendant-Rajinder Singh, his servants, agents and representatives from interfering the land measuring 90' X 60' comprising Khasra No. 635, Khewat No. 12 and Khata No. 435 owned and possessed by the plaintiff situated in Lane No. 9, Greater Kailash Sunjwan, Jammu.
2. The suit has been filed on the basis of the Sale Deed executed by one Raj Kumar on 02.05.1998 and registered by the Sub-Registrar, Munsiff, Jammu on 23.05.1998.
3. Though the defendant was set ex-parte on 25.02.2009 and the plaintiff was directed to produce ex-parte evidence but the suit remained pending for the reasons indicated in the minutes of proceedings till the application under Order-1-Rule-10 CPC was filed on 24.07.2014 on behalf of Sushma Jamwal, wife of defendant-Rajinder Singh Jamwal for being impleaded as party defendant on the ground that she holds permanent leasehold rights in the suit land as she is in possession of two plots measuring 02 Kanals i.e., 90' X 60' and 90' X 60' each on the basis of Lease Deed dated 10.11.1996 registered by the learned Sub-Registrar, Munsiff, Jammu for a period of 90 years.
4. Both the plots according to the appellant including the suit land are in her possession and she has already filed a suit for permanent prohibitory injunction, in which restraint order has been issued against the plaintiff who is defendant in the suit. So the litigation in respect of the suit land is pending in two Courts, one on the basis of the sale and registered on 23.05.1998 and the other on the strength of perpetual lease deed registered on 11.11.1996. The only difference being the suit filed by the plaintiff is only in respect of 1 kanal of land measuring 90' X 60' and the suit filed by the appellant is in respect of 2 kanals of land measuring 90' X 60' each.
5. The Trial Court after considering the objections and hearing the counsel for the parties allowed the application and directed the plaintiff/respondent herein to file amended plaint impleading the applicant subject to payment of Rs. 2,500/-.
6. This order has been challenged mainly on the ground that the applicant has no cause of action to be impleaded as defendant because the Trial Court has by order dated 13.03.2008 given a finding that the suit land is different in view of the dismissal of her application for vacation of interim order dated 03.03.2008 by order dated 13.03.2008, the applicant according to the plaintiff is bound under Order-2 Rule-2 of the CPC and on the principle of res judicata. It is further argued that the applicant is neither the necessary nor the proper party, therefore, the order impugned is without jurisdiction and respondent No. 2 has no locus-standi to be impleaded as a party defendant in the suit.
7. Mr. R.A. Jan, learned Senior counsel appearing on behalf of the revision petitioner, argued that the order impugned is illegal and without jurisdiction, as such, it is liable to be set aside.
8. He next argued that the land stands identified by demarcation, therefore, injunction is the only remedy and since it is her husband against whom relief of injunction is sought, so she has no locus, moreover, grant of injunction does not require declaration, therefore, respondent No. 2 is not even a proper party.
9. On behalf of the respondents, Mr. L.K. Sharma, learned senior counsel, argued that the revision is not maintainable in view of the proviso substituted by Act 6 of 2009 dated 26.03.2009 to Section 115 of the CPC. He also argued that suit is not only against the defendant but his agents are representative, therefore, the respondents who hold lease rights on the suit land is the necessary party besides being the wife of the def
