Mahesh Kumar Mishra Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053888
CourtMadhya Pradesh High Court
Decided OnJun-27-2013
AppellantMahesh Kumar Mishra
RespondentThe State of Madhya Pradesh
Excerpt:
1 w p no.10529/13. writ petition no.10529/2013. 27.6.2013 . shri avinash zargar, learned counsel for the petitioner. heard on the question of admission. order 1. the petitioner/ plaintiff has filed this petition under article 226 of constitution of india being aggrieved by the orders dated 9.4.2013 and 17.4.2013 passed by the civil judge, class-ii, bada malehara in c. o. s. no.27-a/2012, whereby vide order dated 9.4.2013 his application filed under order 1 rule 10 of cpc to implead the district and sessions judge, chhatarpur as defendant in the suit has been dismissed while vide order dated 17.4.2013 his three applications, filed (i) under order 6 rule 17 of cpc to amend the plaint (ii) under section 80 (2) of cpc for grant of leave to amend and/or file the suit against the district and sessions judge, chhatapur without serving the statutory notice on it and (iii) repeat application under order 1 rule 10 of cpc to implead the district and sessions judge, chhatarpur as defendant in the matter have been dismissed.2. the petitioner's counsel after taking me through the averments of the petition as well as the papers placed on record along with the impugned orders, argued that after issuing notice to the respondent and obtaining the leave to file the suit before expiry of statutory period of such notice under section 80 of cpc the impugned suit with respect of the disputed land was filed by the petitioner for issuing perpetual injunction against the state of m. p. through collector chhatarpur. the suit was filed on 31.8.2012 by stating the 2 w p no.10529/13. date of cause of action 22.8.2012, on which the officials of respondent tried to dispossess the petitioner from such land. subsequently in pendency of the suit the officials of the district and sessions judge has tried to interfere in the peaceful possession of the petitioner over the disputed land, on which the petitioner filed an application on 5.4.2013 (ann. p.5) under order 1 rule 10 of cpc to implead the district and sessions judge, chhatarpur as defendant in the matter but on consideration the same was dismissed by the trial court vide order dated 9.4.2013 holding that in the available circumstance the presence of the proposed defendant the district and sessions judge, chhatarpur is not necessary and the suit could be decided effectively in presence of existing parties. such application was also dismissed on account of non-giving the statutory intimation to the proposed defendant under section 80 of cpc. after passing the aforesaid order dated 9.4.2013, he filed above mentioned three applications (i) under order 6 rule 17 of cpc (ii) under section 80 (2) of cpc and (iii) under order 1 rule 10 of cpc. out of them, first application was filed to amend the pleadings to mention the objectionable activities of the officials of the district and sessions judge interfering in possession of the petitioner/ plaintiff with respect of the disputed land so also the prayer clause for issuing perpetual injunction against such authority. in addition to it, by way of separate application earlier also proposed some amendment to insert the pleadings regarding acquisition of the right over the property under the provision of the madhya pradesh krishi proyajan ke liye upyog ki j.rahi dakhal rahit bhoomi par bhoomi swami adhikao ka pradan kiya jana (vishesh 3 w p no.10529/13. upbandh), adhiniyam 1984 (in short “the adhiyiyam”.). second application was filed under section 80(2) of cpc for grant of leave to file the suit without serving the statutory notice of section 80 of cpc on the district and sessions judge and permitting the petitioner to implead it as defendant in the matter. third application was filed again under order 1 rule 10 of cpc for permission to implead the district and sessions judge as defendant in the matter, with the averments that his earlier application filed in this regard under order 1 rule 10 of cpc was dismissed vide order dated 7.4.2013 in the lack of pleadings and non-compliance of the provision of section 80 of the cpc. in continuation he said that looking to the nature of the case the trial court ought to have allowed all three applications but by holding that on allowing the amendment application the nature of the existing suit shall be changed and the cause of action stated in the suit is not available to the petitioner against the district and sessions judge and in such premises the application of section 80 of cpc, so also the aforesaid subsequent application to implead the proposed defendant have been dismissed under the wrong premises. he further said that it is settled proposition of law that in pending civil suit at any stage the parties have right to amend their respective pleadings on the basis of subsequent events, so also the facts as additional approach from the existing pleadings. in such premises, the proposed amendment came in to existence in pendency of the civil suit should have been allowed by the trial court and pursuant to it other two applications should have also been allowed. he further said that if in pendency of the suit one of the party is dispossessed from the property by other then such dispossessed party has a right 4 w p no.10529/13. to amend the suit accordingly for appropriate relief, so in such premises also even in a suit filed only for perpetual injunction the petitioner should have been permitted to amend the pleadings as proposed and to implead the district and sessions judge, as defendant in the case. in the available scenario his application of section 80 (2) of cpc should have also been allowed. with these submission he prayed to set aside the impugned orders by allowing his all three applications by admitting and allowing this petition. in support of his submission he placed his reliance on the decisions in the matter of mayabai vs. khillu reported in 1978 (i) mpwn 498 in the matter of kanhaiyaolal vs. premlal reported in 1981 (i) mpwn 16 and in the matter of rajesh kumar agrawal and others vs. k. k. modi & ors. reported in (2006) 4 scc 385.3. keeping in view the arguments, i have carefully gone through the petition along with the papers placed, so also the impugned orders.4. it is apparent that initially the impugned suit only for perpetual injunction was filed on 31.8.2012 against the respondent/ state after sending the statutory notice to it under section 80 of cpc through registered post and with the leave of the court before expiry of statutory period of 60 days. the suit for perpetual injunction was filed with the pleadings that the petitioner is in possession of the land and on dated 22.8.2012, the officials of the respondent/ state came there and tried to interfere in his right and possession. accordingly, on the cause of action dated 22.8.2012 the suit was filed against the state of madhya pradesh for issuing perpetual injunction as stated in the plaint (ann. a.2). 5 w p no.10529/13.5. on going through the other averments of the plaint it is apparent that on the aforesaid dated 22.8.2012 the date cause of action or on 31.8.2012, of filing the impugned suit no cause of action was available to the petitioner against the district and sessions judge, chhatarpur or its official to file the suit for perpetual injunction or to file any application for interim relief in that regard. it is also apparent from the applications of the petitioner that subsequent to filing the instant suit in pendency of the same the officials of the district and sessions judge had tried to interfere in the right of the petitioner/ plaintiff on which aforesaid first earlier application under order 1 rule 10 of cpc to implead the district and sessions judge, as defendant in the suit was filed on 5.4.2013 and on consideration in the lack of any foundation in the pleadings and cause of action against the district and session judge such application was dismissed vide order dated 7.4.2013. subsequent to it, impugned three applications proposing the amendment in the plaint regarding alleged activities of the officials of the district and sessions judge and the prayer clause for issuing perpetual injunction against it and for grant of leave to implead the said district and sessions judge as defendant, grant of leave to file the suit without serving the statutory notice of section 80 of cpc on the proposed defendant were filed and on consideration the same have been dismissed in speaking manner vide order dated 17.4.2013.6. it is apparent from the impugned order dated 17.4.2013 that the application of amendment was dismissed holding that on allowing the same entire nature of the suit including the cause of action and the prayer clause shall be changed, and pursuant to it 6 w p no.10529/13. application of section 80 (2) of cpc and the application of order 1 rule 10 of cpc were dismissed holdidng that in view of existing pleadings of the plaint the petitioner could not be permitted to implead district and sessions judge, chhatarpur as defendant.7. as per provision of order 6 and 7 of cpc the plaintiff is duty bound to plead specifically the date and facts of available cause of action relating to the person against whom the suit is filed because of such suit is proceeded against such party on the basis of such cause of action and undisputedly on the date of filing the impugned suit or on the date of stated cause of action no cause of action was available to the petitioner against the district and sessions judge, to file the suit for perpetual injunction. in such premises at subsequent stage on coming to existence the entire new facts, if new cause of action has arisen against some other person like proposed defendant for which no foundation is available in the existing pleading of the suit then such plaintiff like petitioner could not be permitted to amend the suit for inserting the entire new facts and implead such person as party, other wise the basic structure and nature of the suit shall be changed, which is not permissible under the existing law. in such premises the trial court has not committed any error in dismissing the aforesaid three applications by the impugned orders.8. apart the aforesaid, it is trite law that the suit for perpetual injunction is always filed by the affected and aggrieved persons on the basis of the availability of cause of action against those persons only who had tried to interfere in his/their right and/or possession of the property. so, in such premises, in pending suit only for perpetual injunction the petitioner/ plaintiff on the same cause of action and 7 w p no.10529/13. pleadings of the plaint could not be permitted to implead any person against whom he accrued the cause of action on some subsequent date after filing the suit. 9 i would like to mention here that there is no bar under the law to file any subsequent suit or litigation on availability of fresh and subsequent cause of action for perpetual injunction against any other person/ persons with respect of the property of existing suit or any part of it. in any case in a suit filed only for perpetual injunction neither the aforesaid amendment application not the application to implead the district and sessions judge, against whom he accrued the cause of action at subsequent stage could have been allowed. so in such premises also the impugned orders do not require any interference at this stage under article 227 of the constitution of india.10. so far the case laws of the apex court as well as of this court cited by the petitioner is concerned, the case of “rajesh kumar agrawal”. (supra), was decided taking into consideration that such suit was the title suit with respect of the alleged property and was not the suit for only perpetual injunction. in a title suit if some one has acquired the title of property in pendency of civil suit then he has a right to make the application to implead him as party in the pending litigation or he may be impleaded by other party in accordance with the procedure and scheme of order 1 rule 10 of cpc read with the provisions of section 52 of t. p. act. in a title suit the title of the transferee is also involved and therefore, such person who wants the declaration or some other relief of title may be permitted to implead 8 w p no.10529/13. as party. but the impugned suit being not title suit the cited case is not helping to the petitioner.11. so far the case law in the matter of “mayabai”. (supra) is concerned, such case was decided on the back ground of the title suit and not the suit of only perpetual injunction. according to the facts of the cited case the name of some party was duly recorded in the revenue record during pendency of the suit contrary to right of such party then he was permitted and directed to be impleaded as party in the matter, which is not the situation in the case at hand, hence this case law is also not helping to the petitioner.12. so far the case, in the matter of “kanhaiyalal”. (supra) is concerning, the same was decided in a suit for perpetual injunction but in such suit only some application of order 6 rule 17 of cpc whereby some subsequent events happened between the existing parties and not the other parties was allowed. as such in the cited case the question to implead additional party was not decided. therefore, this case law is also not helping to the petitioner.13. in view of the aforesaid discussion, i have not found any perversity, illegality, irregularity or any things against propriety of law in the orders impugned requiring any interference at this stage under superintending jurisdiction of this court enumerated under article 227 of the constitution of india. consequently this petition being devoid of any merits is hereby dismissed at the stage of motion hearing. there shall be no order as to cost. (u. c.maheshwari) judge k
Judgment:

1 W P No.10529/13. Writ Petition No.10529/2013. 27.6.2013 . Shri Avinash Zargar, learned counsel for the Petitioner. Heard on the question of admission. ORDER

1. The petitioner/ plaintiff has filed this petition under Article 226 of Constitution of India being aggrieved by the orders dated 9.4.2013 and 17.4.2013 passed by the Civil Judge, Class-II, Bada Malehara in C. O. S. No.27-A/2012, whereby vide order dated 9.4.2013 his application filed under Order 1 Rule 10 of CPC to implead the District and Sessions Judge, Chhatarpur as defendant in the suit has been dismissed while vide order dated 17.4.2013 his three applications, filed (i) under Order 6 Rule 17 of CPC to amend the plaint (ii) under Section 80 (2) of CPC for grant of leave to amend and/or file the suit against the District and Sessions Judge, Chhatapur without serving the statutory notice on it and (iii) repeat application under Order 1 Rule 10 of CPC to implead the District and Sessions Judge, Chhatarpur as defendant in the matter have been dismissed.

2. The petitioner's counsel after taking me through the averments of the petition as well as the papers placed on record along with the impugned orders, argued that after issuing notice to the respondent and obtaining the leave to file the suit before expiry of statutory period of such notice under Section 80 of CPC the impugned suit with respect of the disputed land was filed by the petitioner for issuing perpetual injunction against the State of M. P. through Collector Chhatarpur. The suit was filed on 31.8.2012 by stating the 2 W P No.10529/13. date of cause of action 22.8.2012, on which the officials of respondent tried to dispossess the petitioner from such land. Subsequently in pendency of the suit the officials of the District and Sessions Judge has tried to interfere in the peaceful possession of the petitioner over the disputed land, on which the petitioner filed an application on 5.4.2013 (Ann. P.5) under Order 1 Rule 10 of CPC to implead the District and Sessions Judge, Chhatarpur as defendant in the matter but on consideration the same was dismissed by the trial Court vide order dated 9.4.2013 holding that in the available circumstance the presence of the proposed defendant the District and Sessions Judge, Chhatarpur is not necessary and the suit could be decided effectively in presence of existing parties. Such application was also dismissed on account of non-giving the statutory intimation to the proposed defendant under Section 80 of CPC. After passing the aforesaid order dated 9.4.2013, he filed above mentioned three applications (i) under Order 6 Rule 17 of CPC (ii) under Section 80 (2) of CPC and (iii) under Order 1 Rule 10 of CPC. Out of them, first application was filed to amend the pleadings to mention the objectionable activities of the officials of the District and Sessions Judge interfering in possession of the petitioner/ plaintiff with respect of the disputed land so also the prayer clause for issuing perpetual injunction against such authority. In addition to it, by way of separate application earlier also proposed some amendment to insert the pleadings regarding acquisition of the right over the property under the provision of the Madhya Pradesh Krishi Proyajan Ke Liye Upyog Ki J.Rahi Dakhal Rahit Bhoomi Par Bhoomi Swami Adhikao Ka Pradan Kiya Jana (Vishesh 3 W P No.10529/13. Upbandh), Adhiniyam 1984 (in short “the Adhiyiyam”.). Second application was filed under Section 80(2) of CPC for grant of leave to file the suit without serving the statutory notice of Section 80 of CPC on the District and Sessions Judge and permitting the petitioner to implead it as defendant in the matter. Third application was filed again under Order 1 Rule 10 of CPC for permission to implead the District and Sessions Judge as defendant in the matter, with the averments that his earlier application filed in this regard under Order 1 Rule 10 of CPC was dismissed vide order dated 7.4.2013 in the lack of pleadings and non-compliance of the provision of Section 80 of the CPC. In continuation he said that looking to the nature of the case the trial Court ought to have allowed all three applications but by holding that on allowing the amendment application the nature of the existing suit shall be changed and the cause of action stated in the suit is not available to the petitioner against the District and Sessions Judge and in such premises the application of Section 80 of CPC, so also the aforesaid subsequent application to implead the proposed defendant have been dismissed under the wrong premises. He further said that it is settled proposition of law that in pending civil suit at any stage the parties have right to amend their respective pleadings on the basis of subsequent events, so also the facts as additional approach from the existing pleadings. In such premises, the proposed amendment came in to existence in pendency of the civil suit should have been allowed by the trial Court and pursuant to it other two applications should have also been allowed. He further said that if in pendency of the suit one of the party is dispossessed from the property by other then such dispossessed party has a right 4 W P No.10529/13. to amend the suit accordingly for appropriate relief, so in such premises also even in a suit filed only for perpetual injunction the petitioner should have been permitted to amend the pleadings as proposed and to implead the District and Sessions Judge, as defendant in the case. In the available scenario his application of Section 80 (2) of CPC should have also been allowed. With these submission he prayed to set aside the impugned orders by allowing his all three applications by admitting and allowing this petition. In support of his submission he placed his reliance on the decisions in the matter of Mayabai Vs. Khillu reported in 1978 (I) MPWN 498 in the matter of Kanhaiyaolal Vs. Premlal reported in 1981 (I) MPWN 16 and in the matter of Rajesh Kumar Agrawal and others Vs. K. K. Modi & Ors. reported in (2006) 4 SCC 385.

3. Keeping in view the arguments, I have carefully gone through the petition along with the papers placed, so also the impugned orders.

4. It is apparent that initially the impugned suit only for perpetual injunction was filed on 31.8.2012 against the respondent/ State after sending the statutory notice to it under Section 80 of CPC through registered post and with the leave of the Court before expiry of statutory period of 60 days. The suit for perpetual injunction was filed with the pleadings that the petitioner is in possession of the land and on dated 22.8.2012, the officials of the respondent/ State came there and tried to interfere in his right and possession. Accordingly, on the cause of action dated 22.8.2012 the suit was filed against the State of Madhya Pradesh for issuing perpetual injunction as stated in the plaint (Ann. A.2). 5 W P No.10529/13.

5. On going through the other averments of the plaint it is apparent that on the aforesaid dated 22.8.2012 the date cause of action or on 31.8.2012, of filing the impugned suit no cause of action was available to the petitioner against the District and Sessions Judge, Chhatarpur or its official to file the suit for perpetual injunction or to file any application for interim relief in that regard. It is also apparent from the applications of the petitioner that subsequent to filing the instant suit in pendency of the same the officials of the District and Sessions Judge had tried to interfere in the right of the petitioner/ plaintiff on which aforesaid first earlier application under Order 1 Rule 10 of CPC to implead the District and Sessions Judge, as defendant in the suit was filed on 5.4.2013 and on consideration in the lack of any foundation in the pleadings and cause of action against the District and Session Judge such application was dismissed vide order dated 7.4.2013. Subsequent to it, impugned three applications proposing the amendment in the plaint regarding alleged activities of the officials of the District and Sessions Judge and the prayer clause for issuing perpetual injunction against it and for grant of leave to implead the said District and Sessions Judge as defendant, grant of leave to file the suit without serving the statutory notice of Section 80 of CPC on the proposed defendant were filed and on consideration the same have been dismissed in speaking manner vide order dated 17.4.2013.

6. It is apparent from the impugned order dated 17.4.2013 that the application of amendment was dismissed holding that on allowing the same entire nature of the suit including the cause of action and the prayer clause shall be changed, and pursuant to it 6 W P No.10529/13. application of Section 80 (2) of CPC and the application of Order 1 Rule 10 of CPC were dismissed holdidng that in view of existing pleadings of the plaint the petitioner could not be permitted to implead District and Sessions Judge, Chhatarpur as defendant.

7. As per provision of Order 6 and 7 of CPC the plaintiff is duty bound to plead specifically the date and facts of available cause of action relating to the person against whom the suit is filed because of such suit is proceeded against such party on the basis of such cause of action and undisputedly on the date of filing the impugned suit or on the date of stated cause of action no cause of action was available to the petitioner against the District and Sessions Judge, to file the suit for perpetual injunction. In such premises at subsequent stage on coming to existence the entire new facts, if new cause of action has arisen against some other person like proposed defendant for which no foundation is available in the existing pleading of the suit then such plaintiff like petitioner could not be permitted to amend the suit for inserting the entire new facts and implead such person as party, other wise the basic structure and nature of the suit shall be changed, which is not permissible under the existing law. In such premises the trial Court has not committed any error in dismissing the aforesaid three applications by the impugned orders.

8. Apart the aforesaid, it is trite law that the suit for perpetual injunction is always filed by the affected and aggrieved persons on the basis of the availability of cause of action against those persons only who had tried to interfere in his/their right and/or possession of the property. So, in such premises, in pending suit only for perpetual injunction the petitioner/ plaintiff on the same cause of action and 7 W P No.10529/13. pleadings of the plaint could not be permitted to implead any person against whom he accrued the cause of action on some subsequent date after filing the suit. 9 I would like to mention here that there is no bar under the law to file any subsequent suit or litigation on availability of fresh and subsequent cause of action for perpetual injunction against any other person/ persons with respect of the property of existing suit or any part of it. In any case in a suit filed only for perpetual injunction neither the aforesaid amendment application not the application to implead the District and Sessions Judge, against whom he accrued the cause of action at subsequent stage could have been allowed. So in such premises also the impugned orders do not require any interference at this stage under Article 227 of the Constitution of India.

10. So far the case laws of the Apex Court as well as of this Court cited by the petitioner is concerned, the case of “Rajesh Kumar Agrawal”. (Supra), was decided taking into consideration that such suit was the title suit with respect of the alleged property and was not the suit for only perpetual injunction. In a title suit if some one has acquired the title of property in pendency of civil suit then he has a right to make the application to implead him as party in the pending litigation or he may be impleaded by other party in accordance with the procedure and scheme of Order 1 Rule 10 of CPC read with the provisions of Section 52 of T. P. Act. In a title suit the title of the transferee is also involved and therefore, such person who wants the declaration or some other relief of title may be permitted to implead 8 W P No.10529/13. as party. But the impugned suit being not title suit the cited case is not helping to the petitioner.

11. So far the case law in the matter of “Mayabai”. (Supra) is concerned, such case was decided on the back ground of the title suit and not the suit of only perpetual injunction. According to the facts of the cited case the name of some party was duly recorded in the revenue record during pendency of the suit contrary to right of such party then he was permitted and directed to be impleaded as party in the matter, which is not the situation in the case at hand, hence this case law is also not helping to the petitioner.

12. So far the case, in the matter of “Kanhaiyalal”. (Supra) is concerning, the same was decided in a suit for perpetual injunction but in such suit only some application of Order 6 Rule 17 of CPC whereby some subsequent events happened between the existing parties and not the other parties was allowed. As such in the cited case the question to implead additional party was not decided. Therefore, this case law is also not helping to the petitioner.

13. In view of the aforesaid discussion, I have not found any perversity, illegality, irregularity or any things against propriety of law in the orders impugned requiring any interference at this stage under superintending jurisdiction of this Court enumerated under Article 227 of the Constitution of India. Consequently this petition being devoid of any merits is hereby dismissed at the stage of motion hearing. There shall be no order as to cost. (U. C.Maheshwari) Judge k