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Mohammad Nasir Khan And Others v. Mohammad Ahmad And Others - WRIT - C No. 3439 of 2006 [2006] RD-AH 2507 (1 February 2006)


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Court No. 23

Civil Misc. Writ Petition No. 3439 of 2006

Mohammad Nasir Khan & others Vs. Mohammad Ahmad & others



Heard the learned counsel for the parties.

In a suit for permanent inunction, the petitioners third party moved an application under Order I Rule 10 C.P.C. for being impleaded as party to the suit. The application was allowed by the trial court, but in a revision filed against the said order, the revisional court has set aside that order of the trial court and remanded the matter for fresh disposal of the application under Order I Rule 10 C.P.C. in the light of the observations made in the judgment.

The learned counsel appearing for the petitioners submits that the petitioners are admittedly in possession of the disputed premises and they claim themselves as owners of the said property. The suit is collusive between the plaintiff and the defendant and may cast cloud  in case the suit is decreed, on the right and title possessed by the petitioners.

In reply to the aforesaid, the learned counsel appearing for the respondents has tried to impress upon the Court that the petitioners have no locus to become parties in the suit and they are in possession of the disputed house No. 205 as tenants only and the suit for permanent injunction even if decreed, will hardly have any effect upon their right and title over the property in question which they are occupying only as tenants and not otherwise. He has cited a case law of Ram Charan Sharma and others Vs. Vidya Matri Mandir and others, (1994) 2 CRC 1066.

The petitioners before the trial court had moved an application under Order I Rule 10 C.P.C. stating that they are in possession as owners of the disputed house No. 205 and they should, therefore, be impleaded as parties. The trial court finding some merit in the prayer, had allowed the application. So far as the possession of the petitioners over  the disputed house is concerned, it is not disputed. May be that according to the respondents the petitioners are occupying the house only in capacity of tenants. It is somehow or the other possible that the decree passed in a suit for permanent injunction may not affect the right of the petitioners quite obviously, if they are in possession of the house as tenants only, but according to the petitioners' claim that house is owned by them and their possession is not by way of tenants. In that case the decree might cast some cloud. However, looking to the facts and circumstances it appears that the petitioners even though might not be necessary parties in the suit, but they are definitely proper parties. Looking to the facts at hand the case law of Ram Charan Sharma, as referred to above, may not be suitably applicable to the present case. As such it will not be of much help to the submissions made on behalf of the respondents. The petitioners appear to be proper parties and if they have been directed to be impleaded by the trial court, the order does not appear to have any legal or procedural lacuna. The revision against the said order has been allowed only under this presumption that a decree for permanent injunction is a decree in personum and does not affect the rights of the other persons who are parties to the suit. This reason alone is not enough to disturb the order passed by the trial court and as such it will be proper that the revisional court's order as impugned in this petition is quashed.

In result, the petition is allowed with no order as to costs.

The impugned order dated 12.12.2005 is hereby quashed and the order of the trial court dated 19.8.2004 is brought alive.




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