Mohd. Farooq Vs. District Judge, Allahabad and Others

Mohd. Farooq vs District Judge, Allahabad and Others

Type Court Judgment Court Allahabad Decided Mar 25, 1992

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Citation: sooperkanoon.com/447679
Court: Allahabad High Court
Judge: N.L. Ganguly, J.
Decided On: Mar 25, 1992
Case Number: Civil Misc. Writ Petition No. 10153 of 1992
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

Civil - impleadment - Order 1 Rule 3 of Code of Civil Procedure, 1908 - apprehension of plaintiff and defendant getting the suit decided collusively - not enough for impleading as defendant - plaintiff the sole architect of his plaint - any decree or Order passed by a Court would not affect a person who is not a pa...

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC), 1908 - Order 1, Rules 3 and 10; Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Mohd. Farooq

Advocate Shri A.S. Diwakar, Adv.

Respondent

District Judge, Allahabad and Others

Advocate S.C.

Legal References

Acts: Code of Civil Procedure (CPC), 1908 - Order 1, Rules 3 and 10; Constitution of India - Article 226
Reported In: AIR1993All8

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........a relief. in the present case, there is no allegation or any cause of action against the petitioner who seeks to be impleaded as defendant in the suit. the mere apprehension of the petitioner that the plaintiff and defendants of the suit may collusively get their suit decided which would adversely affect the rights of the petitioner is misconceived. it is well settled that any decree or order passed by a court would not affect a person who is not a party in the suit or the proceedings. it is made clear that if any collusive judgment or decree is obtained by the party to the suit, it shall have no legal effect on the rights of the present petitioner. it is not always necessary to implead a person in a suit. only it is settled that impleadment is necessary to avoid multiplicity of the suit. there must be such facts and circumstances to show that unless the person is impleaded in the suit or a proceeding, there is likelihood of further litigation in the same matter. the facts of the present case are altogether different. the petitioner after having failed in the civil revision has now come to this court under art. 226 of the constitution of india. a relief which could have been given by the court below under art. 226. the present writ petition is misconceived and calls for no interference under article 226 of the constitution.7. in the result, the petition is dismissedsummarily.8. petition dismissed.

Full Judgment

ORDER

1. A civil suit No. 159 of 1989 was filed by one Riaz Ahmad and Nuren Ahmad against Faffar and Nanhe before the Court of Sharki, Allahabad, for a relief of injunction restraining the defendants not to demolish, damage or illegally possess the land of plaintiffs abadi, shown by letters 'ka, kha, ga, gha, angha and cha' of the site-plan. They may also not interfere with the plaintiffs' possession over the land in question. The defendant respondents filed their written statements to the plaint before the Court.

2. The present petitioner submitted an application under O. 1 R. 3 for impleading as defendant No. 4 in the plaint. The application for impleadment was opposed by therespondents. The petitioner submitted that he is a necessary party, and his rights and interests in the property in question is likely to be affected unless he is impleaded in the suit as a party.

3. The application for impleadment was rejected by the learned Civil Judge on the ground that the plaintiff of the suit had filed the suit for injunction against the persons shown as defendants against whom he has pleaded the cause of action and seeks the reliefs. The application for impleadment filed by the petitioner was rejected on the ground that neither he is a necessary party nor there was any relief claimed against him. Thus, the application was rejected.

4. The petitioner being aggrieved by the said order of refusal for impleadment filed a civil revision No. 35 of 1992 before the District Judge, Allahabad, who too by order dt. 29th January, 1989, dismissed the civil revision summarily.

5. The petitioner, thus, approached before this Court under Art. 226 of the Constitution of India and raised various pleas about certain compromises held in a pancha-yat. The submission is that the plaintiff of the suit and the defendant already on record are likely to collude and compromise in the suit filed and such compromise or collusive judgment and decree is likely to cause irreparable loss and prejudice to the petitioner's interest. The learned counsel for the petitioner cited AIR 1990 Delhi 13 Gurmauj Saran Balsuja v. Mrs. Joyce C. Salim, to indicate that an order under O.1 R. 10 C.P.C. to implead a person as defendant affects vital and valuable right of the plaintiff which amounts to a judgment. The Division Bench of the Delhi High Court was pleased to observe that though an order under O. 1 R. 10 CPC is appealable before a Division Bench. The other point in the said decision of the Delhi High Court is that addition of a necessary party may be allowed to avoid multiplicity of proceedings and for effectual and complete adjudication between the parties. There is no such hard and fast rule forimpleadment of a party as a defendant if such application is made with delay. It is always a discretion of the court before whom the application for impleadment is filed to decide and exercise the discretion according to law.

6. I have heard the learned counsel for the petitioner and examined the case law cited. The case law cited is of no assistance for the decision of the present case. The law is settled on the point that the plaintiff is sole architect of his plaint. It is the plaintiff who has a right to choose his own adversary against whom he seeks a relief. In the present case, there is no allegation or any cause of action against the petitioner who seeks to be impleaded as defendant in the suit. The mere apprehension of the petitioner that the plaintiff and defendants of the suit may collusively get their suit decided which would adversely affect the rights of the petitioner is misconceived. It is well settled that any decree or order passed by a Court would not affect a person who is not a party in the suit or the proceedings. It is made clear that if any collusive judgment or decree is obtained by the party to the suit, it shall have no legal effect on the rights of the present petitioner. It is not always necessary to implead a person in a suit. Only it is settled that impleadment is necessary to avoid multiplicity of the suit. There must be such facts and circumstances to show that unless the person is impleaded in the suit or a proceeding, there is likelihood of further litigation in the same matter. The facts of the present case are altogether different. The petitioner after having failed in the civil revision has now come to this Court under Art. 226 of the Constitution of India. A relief which could have been given by the court below under Art. 226. The present writ petition is misconceived and calls for no interference under Article 226 of the Constitution.

7. In the result, the petition is dismissedsummarily.

8. Petition dismissed.

Same Court & Year Allahabad · 1992 Same Parties Mohd. Farooq vs District Judge, Allahabad and Others Same Subject Civil Same Judge N.L. Ganguly, J. Acts & Sections Code of Civil Procedure (CPC), 1908 - Order 1, Rules 3 and 10...

Civil