1 SB Civil Writ Petition No.5849/2007 Ahmed Ali. vs. Addl. Civil Judge (JD) No.2, Bhilwara & Ors. S.B. Civil Writ Petition No.5849/2007 Ahmed Ali. vs. Addl. Civil Judge (JD) No.2, Bhilwara and others. Date : 19.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.JK Bhaiya, for the petitioner. Mr.KC Samdaria, for the respondents. - - - - - Heard learned counsel for the parties. The petitioner has challenged the order dated 20.8.2007 under absolutely erroneous assumption that the trial court while deciding the application under Order 1 Rule 10 CPC has decided the contentious issue involved in the suit with respect to the right under which the newly added parties are in possession of the disputed premises, and allowed the applicants' application filed under Order 1 Rule 10 CPC and made them party in the suit. It appears that learned counsel for the 2 SB Civil Writ Petition No.5849/2007 Ahmed Ali. vs. Addl. Civil Judge (JD) No.2, Bhilwara & Ors. petitioner has not even read the impugned order wherein the court below very specifically observed that “prima-facie” from the documents, it appears that Devendra Kumar Patel and Savita Ben whose possession has already been admitted in the plaint itself, appears to be partners of the firm. The words, specifically, used by the court are “prima-facie”. It is undisputed that at this stage, the trial court could not have decided contentious issue on application filed under Order 1 Rule 10 CPC but could have passed order on application under Order 1 Rule 10 CPC after considering merit in claim of the applicants for the purpose of finding out whether there is prima- facie substance in the claim of applicants or not ? So far as possession in the premises of the persons who have been impleaded as parties by the impugned order is specifically admitted by the plaintiff in para no.5 of the plaint. The plaintiff for the reasons best known to him, even after admitting the possession of the applicants, though in different capacity, yet they have challenged the order passed by the court below knowing it well that in case, decree for eviction 3 SB Civil Writ Petition No.5849/2007 Ahmed Ali. vs. Addl. Civil Judge (JD) No.2, Bhilwara & Ors. in the plaintiff's suit will be passed, the applicants are to be ousted. Learned counsel for the petitioner confusedly stated that the partners of M/s. RR Contractor and Company are not known to the petitioner/plaintiff and the petitioner also does not know who will represent M/s. RR Contractor and Company – sole defendant, yet has filed the suit against M/s. RR Contractor & Company and seeking eviction decree against that firm and the plaintiff does not know who will represent the defendant. This Court is ignoring this confused argument because of the reason that the subject matter in the present writ petition is only with respect to the order of the trial court dated 20.8.2008 by which the application under Order 1 Rule 10 CPC has been allowed by the trial court for the reason mentioned above that the possession of the newly added parties – Devendra Kumar Patel and Savita Ben in the premises in dispute is admitted and they are running business in the premises in dispute is also admitted in the plaint. 4 SB Civil Writ Petition No.5849/2007 Ahmed Ali. vs. Addl. Civil Judge (JD) No.2, Bhilwara & Ors. This writ petition is absolutely frivolous and, therefore, the same is hereby dismissed. Taking a lenient view that there may not be a fault of the petitioner and he proceeded on advice of his counsel, therefore, no costs is imposed. (PRAKASH TATIA), J. S.Phophaliya