Raja Mohammad Amir Mohammad Khan Petitioner v. Union Of India And Another S

Hon'ble Tarun Agarwala, J.

The State of U.P has filed an impleadment application under Order 1 Rule 10 C.P.C contending that most of the properties, which the petitioner wants possession from the Custodian of Enemy Property for India, are located in the territorial limit of the State of U.P and that many of the properties not only belongs to the State of U.P but the possession is also with the State of U.P and not with the Custodian of Enemy Property. Consequently, the presence of the State of U.P is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the subject matter of the writ petition. It was alleged that the list of the properties, which are mentioned in Annexure-3 to the writ petition, are different than the list of the properties mentioned in Schedule-I of the plaint, which the petitioner had filed being Original Suit No. 219 of 1984, which eventually culminated by an order of the Supreme Court directing the Custodian of Enemy Property to return the properties to the petitioner. The applicant has further alleged that majority of the properties are located in Lucknow, Khiri and Sitapur, which are in the State of U.P

No counter affidavit has been filed by the petitioner, but the said impleadment application has been opposed vehemently. The learned Senior Counsel contended that the relief sought in the writ petition is against the Union of India as well as against the Custodian of Enemy Property for India and that no relief has been sought against the State of U.P Consequently, the State of U.P is neither a necessary party nor a proper party. The learned counsel contended that the petitioner, being the dominus litis, has a right to choose the person against whom he wishes to litigate and cannot be compelled to array a party against whom he does not seek any relief. Consequently, the learned counsel contended that the impleadment application should be rejected since the applicant is neither a necessary party nor a proper party. In support of his contention, the learned counsel placed reliance upon the decision of the Supreme Court in (1992) 2 SCC 524, Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (2005) 6 SCC 733Kasturi v. Iyyamperumal, (2010) 7 SCC 417, Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited.

Having heard the learned counsel for the parties, the general rule with regard to the impleadment of the parties is that the applicant, being the dominus litus, has a right to choose his opponent and cannot be compelled to sue a person against whom he does not seek a relief. The petitioner cannot be compelled to implead a party against his wishes, but this general rule is subject to the provisions of Order 1 Rule 10(2) C.P.C, which gives a discretion to the court to add or strike out parties. The Supreme Court in Mumbai International Airport Private Limited (supra) has clearly held that the court has been given the discretion to add a party in case it is found that the person is a necessary party or a proper party.

In the instant case, since no relief has been sought against the State of U.P, the applicant State of U.P is not a necessary party, but in the opinion of the Court, the controversy involved in the petition with regard to the return of the properties from the Custodian of Enemy Property partakes a public interest nature. Further, the State of U.P has made a specific averment that some of the properties vests with the State of U.P and are in their possession and not with the Custodian. Consequently, in the opinion of the Court, even though the State of U.P is not a necessary party since no relief has been claimed against them, the Court is of the opinion that the State of U.P is a proper party and should be heard since a majority of the properties are located in the State of U.P

For the reasons stated aforesaid, Impleadment Application No. 13679/2011 is allowed. The State of Uttar Pradesh, through Principal Secretary, Revenue is impleaded as respondent no. 3 to the writ petition. Necessary correction in the array of parties be carried out by the petitioner or amended memo of parties be filed in the Registry. The newly impleaded respondent shall file a counter affidavit within three weeks. Rejoinder affidavit to the counter affidavit may be filed within two weeks thereafter.

A copy of the counter affidavit filed by the State of U.P shall also be served to the counsel appearing for the Union of India.

List this matter for further hearing on 12th April, 2012.

It is made clear that this impleadment application was filed by the State of U.P while the hearing of the writ petition was going on. Consequently, no further time shall be granted to the State of U.P to file a counter affidavit.