& Ors Vs. Agricultural Produce Mkt. Committee & Ors  Insc 258 (22 February 2008)
Kabir & J.M. Panchal
O R D
E R CRIMINAL APPEAL NO. 1557 OF 2008 (Arising out of SLP (C) No. 17976/2006)
four persons, including the respondent Nos.2 and 3, namely, Basant Lal and Satish
Kumar, filed a suit on 6.4.1993 for perpetual injunction before the Subordinate
Judge in Tis Hazari
Court at Delhi. The respondent No.1 i.e. the
Agricultural Produce Market Committee (hereinafter referred to as an `APMC')
raised an objection regarding the maintainability of the suit. Having regard to
the provisions of Sec. 41(h) of the Specific Relief Act upholding the
objection, the trial court dismissed the suit on 25.7.1998 holding that the
suit was not maintainable. The appellants herein, along with the respondent
No.2, preferred an appeal before the Additional District Judge and the same was
also rejected on the ground of maintainability.
Five separate regular second appeals were filed in the High Court, being RSA
Nos. 65/00,66/00,76/00,79/00 and 82/00. The respondent Nos.2 and 3 herein, who
were originally plaintiff Nos. 10 and 13 in the suit, did not file any second
appeal against the judgment of the trial court as upheld by the Ist Appellate
Court. On 21st
September, 2001, the
Regular Second Appeals filed by the petitioners herein were allowed by the
considered the matter in its entirety, this Court is of the considered view
that it will be just, proper, and necessary and expedient in interest of
justice to allow the amendment applications of the appellants so that the
dispute and controversy raised in the present proceedings is finally
adjudicated on merits. The applications under Order 6 Rule 17, CPC filed in these
appeals are accordingly allowed, however, subject to payment of cost of
Rs.2000/- in each appeal. The result of allowing the amendment is that the
suits of the appellants will now be maintainable and have to be tried on
merits. the matter is, therefore, remanded back to the Trial Court for further
trial in accordance with law. Parties are directed to appear in the Trial Court
on 4th October, 2001, to receive further directions in
virtue of the said order the applications filed on behalf of the petitioners
under Order 6 Rule 17 of the Code of Civil Procedure in the said appeal for
amendment of the plaint to include the prayer for declaration was allowed,
subject to payment of cost of Rs.2000/- in each appeal. As was indicated in the
order itself by allowing the amendment the suit of the appellants herein became
maintainable and would have to be tried on merits. The matter was accordingly
remanded back to the trial court for further trial in accordance with law.
the matter went back to the trial court, an application was made by the
respondent Nos.2 and 3 under Order 6 Rule 17 of the Code of Civil Procedure for
amendment of the plaint, since they had not been made parties, either as
plaintiffs or as defendants, in the amended plaint. The said application was
dismissed on the ground of maintainability since it was found that the said
respondents had no locus standi to maintain the application. Thereafter, the
said respondents filed an application under Order 1 Rule 10 of the Code of Civil
Procedure for being added as plaintiffs in the suit.
Despite objections on behalf of the appellants herein the said application was
allowed and the respondent Nos. 2 and 3 were added as plaintiffs in the suit.
Aggrieved thereby the appellants moved the High Court in revision and the High
Court relying on the provisions of Order 41 Rule 4 of the Code was of the view
that the respondent Nos.2 and 3 could not be precluded from pursuing their
remedy once the suit had been restored.
the said order of the High Court which is impugned in the present appeal.
in support of the appeal, Mr. Ranjit Kumar, learned senior counsel, submitted
that both the trial court as well as the High Court had erred in relying upon
the provisions of Order 41 Rule 4 in holding that the respondent Nos.2 and 3
would continue to remain as plaintiffs once the suit was restored. According to
Mr. Ranjit Kumar, what both the courts failed to consider was the fact that
although at the initial stage when the suit was filed the interests of the
appellants herein as also of the respondent Nos.2 and 3 were common,
differences arose between them during the pendency of the matters before the
different courts and at present the stand of the respondent -5- Nos. 2 and is,
in fact, different from that of the appellants herein and the said respondents
are in effect supporting the case which was being made out by the APMC.
heard learned counsel of the respective parties, we are of the view that while
both the courts below had taken a correct view that the respondent Nos. 2 and 3
were entitled to be parties in the suit, they do not appear to have taken into
consideration the events as a result whereof the interests of the appellants
and the respondent Nos. 2 and 3 were no longer the same and it was not in the
interest of the parties to have the said respondent Nos. 2 and 3 in the array
of plaintiffs along with the appellants herein.
have been taken through certain averments made on behalf of the respondent Nos.
2 and 3 in the applications before the trial court from which the aforesaid
position becomes clear.
that view of the matter, we are inclined to set aside the order passed by the
trial court as also the High -6- Court adding the respondent Nos. 2 and 3 as
plaintiffs in the suit and direct that the said respondents be added as
defendants in the suit instead. We make it clear that we have not expressed any
opinion as to the case made out by the different parties and the final relief
that may be granted and the trial court will be entirely free to proceed in the
matter in accordance with law.
appeal is disposed of. There will be no order as to costs.