HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.266 of 2009 (M/S) Tejram and another Both S/o Bala R/o Durga Bagh Daksh Road Kankhal Haidwar, Tehsil & District Haridwar … Petitioners Versus Rakesh Kumar and others …. Respondents Dated:- 22nd July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Nagesh Agarwal, the learned counsel for the petitioner and Mr. Neeraj Garg and Mr. Ramji Srivastava, the learned counsel for the respondents. 2. The plaintiff respondent no.6 filed a suit for injunction praying that the defendant nos.1 to 5 should be restrained from interfering in the joint possession of respondent no.6 and the proforma defendant no.7. It is alleged that during the pendency of the suit, the plaintiff sold his share of the property to defendant nos.1 to 5 and, thereafter, filed an application for withdrawal of the suit. The proforma defendants nos.6 and 7 namely, the petitioners filed an application under Order 23 Rule 1-A read with Order 1 Rule 10 of the C.P.C. praying that the said defendants may be transposed as plaintiffs and may also be permitted to continue with the suit. The application of the plaintiff was allowed and the suit was dismissed as withdrawn and the application of the petitioners for transposition as plaintiff was rejected. The petitioners, being aggrieved by the said order, has filed the present writ petition. 3. The learned counsel for the petitioners submitted that admittedly the property was ancestral and joint between the plaintiff and the petitioners and that the plaintiff could not have sold the property to defendant nos.1 to 5 unless the ancestral property was partitioned by metes and bounds, which in the present case, had not been done. The learned counsel submitted that even though, the petitioners were arrayed as proforma defendants, they had filed their written statement claiming therein that they should be granted similar relief as claimed by the plaintiff and, therefore, the learned counsel for the petitioners submitted that the application for transposition as plaintiffs had rightly been filed and ought to have been allowed by the court below. For facility, the provision of Order 23 Rule 1 and Rule 1-A of the C.P.C. is extracted hereunder:- “1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An Application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1); or 3 (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 1-A. When transposition of defendants as plaintiffs may be permitted. – Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.” 4. A perusal of the aforesaid provisions indicate that the plaintiff may at any time after the institution of the suit could abandon his suit and, for that purpose, an application for leave is required to be filed. The court, upon being satisfied could permit the plaintiff to withdraw the suit or part of the claim with or without liberty to file afresh. Order 23 Rule 1-A of the C.P.C. was inserted by the Code of Civil Procedure by Amending Act, 1976 wherein the power to withdraw the claim by the plaintiff was curtailed to a certain extent and a liberty was given to the defendant to apply and be transposed as a plaintiff under Order 1 Rule 10 C.P.C. in the event the court considered that the applicant had a substantial question to be decided as against the other defendants. 5. In the present case, the submission of the learned counsel for the petitioners is that the property was joint and had not been partitioned by metes and bounds and, therefore, the plaintiff could not have executed a sale deed in favour of existing defendants nos.1 to 5. Consequently, the petitioners should have been transposed as plaintiffs and should have 4 been allowed to contest and pursue the suit against the defendant nos.1 to 5. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of the Ranchi Bench in the case of Md. Muzahid Vs. John Wilson Zedak & another AIR 1989 Patna 2, wherein the court held that one of the reasons for inserting Rule 1-A of Order 23 was to do away with multiplicity of suit and to shorten the litigation. The court also held that the right of the plaintiff to walk out of a suit by abandoning it or withdrawing from suit had been curtailed. 6. There is no dispute with the aforesaid proposition propounded in the aforesaid judgment. The question here is whether the plea raised by the petitioners could be claimed if the petitioners are transposed as plaintiffs. In my opinion, the answer is ‘no’. The plaintiffs had claimed a relief of permanent injunction restraining the defendant nos.1 to 5 from interfering in the possession of the plaintiffs alongwith the proforma defendants now the petitioners. The question of execution of a sale deed by the plaintiff in favour of defendant nos. 1 to 5 was not an issue to be decided in the suit filed by the plaintiff. This is a subsequent event and even if the petitioners for the sake of argument are transposed as plaintiffs, the relief which the petitioners are alleging, namely, the relief that the plaintiff had no right to transfer the joint property in favour of the defendant nos.1 to 5 cannot be granted since only the petitioners have claimed a relief of transposition and has nowhere, claimed the relief that the plaintiff should be transposed as a contesting defendants. In the light of the aforesaid, this court does not find any error in the impugned order. The writ petition fails and is dismissed. It is open to the petitioners to take appropriate action in accordance with law. (Tarun Agarwala, J.) Dated 22.07.2010 LSR HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.3555 of 2001 (M/S) {Old No.27959 of 1998} Ram Chandra Agrawal S/o Sri Ruliyaram … Petitioner Versus The Addl. District Judge and others …. Respondents Dated:- 19th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Sidhartha Singh, the learned counsel for the petitioner and Mr. Tapan Singh, the learned counsel holding the brief of Mr. Lok Pal Singh, the learned counsel for the respondent no.3. 2. In 1993, to be more precise, on 17th January, 1993, a notice was issued on behalf of Jagdish @ Jagrup Verma respondent no.3 to the petitioner intimating him that he should vacate the premises in question as the said premises was required by the landlord for his own use. The said notice was received and, in response thereto, a reply was issued admitting his tenancy and further admitting that respondent no.3 was the landlord. Subsequently, in the year 1993, an application under Section 21(1)(a) of the U.P. Act No.13 of 1972 was filed. The respondent no.3 contended that he is the landlord and has a family of six persons i.e., his wife, three children and mother and, that he requires the accommodation in order to start a business so that he could support his family. In the application, it was categorically stated that he has no other premises where he could start the business. 3. The petitioner resisted the application and submitted that there was no bonafide need of the landlord and that he does not require the premises in question for his business purpose. Further, the petitioner contended that he had been a tenant since 1952 and that it will cause a lot of hardship to him, if he was required to vacate the premises at this stage. The petitioner further raised a dispute with regard to the 7 ownership of the premises in question and contended that the respondent no.3 was not sole owner and that he was only a co-owner alongwith others. It was contended that the property was initially was let out by Smt. Budhan W/o Dukhi Ram who had two sons, namely, Mangat Ram and Chunni Lal and that the rent was being paid to Mangat Ram since Chunni Lal was a minor. The present application had been filed by Jagdish alias Jagrup Verma S/o Chunni Lal, whereas the heirs of Mangat Ram had not been brought on record. The petitioner tenant submitted that the application was not maintainable at the instance of Jagdish alias Jagrup Verma and that all the co-owners of the property were required to file a petition jointly. 4. On the basis of the pleadings, the prescribed authority, by an order dated 29.11.1994, rejected the application relying upon paper No.27(k) and construing this document as the landlord having let out only the land to the petitioner. The prescribed authority held that in view of Section 29-A of the U.P. Act No.13 of 1972, letting out of a land was not covered under U.P. Act No.13 of 1972 and, on this short ground, rejected the application. 5. The landlord, being aggrieved, filed an appeal which was allowed by an order dated 20th April, 1995 directing the prescribed authority to reconsider the matter in the light of the observation made therein. The appellate court held that the tenant had not taken any ground under Section 29-A of the Act and had nowhere stated that only the land was let out to him and that no building was let out. The appellate court further held that in the absence of any pleadings being raised by the tenant, the prescribed authority could not have taken up this plea without affording any opportunity to the parties. The appellate court further held that the prescribed authority had misread the document 27(k) and that the said document was not an agreement, but, an undertaking given by the tenant to vacate the premises as and when the 8 landlord Chunni Lal required. This document also indicates that not only the land, but also a shop was let out. 6. Upon remand, the prescribed authority passed an order dated 25th May, 1995 holding that the landlord had a bonafide need to start his business in the premises in question and that the need of the landlord was genuine and imminent. The prescribed authority, accordingly, allowed the application and released the premises in question. 7. The tenant, being aggrieved, preferred an appeal and during the pendency of the appeal filed an application for amendment of his written statement. In the amendment application, the tenant sought to incorporate the plea of Section 29-A of the Act, namely, that no building was let out to him and that only a piece of land was let out to him in which he had made the constructions with the consent of the landlord. This amendment application was rejected by the lower appellate court by an order dated 17th March, 1998. Thereafter, the appeal was heard and was dismissed by an order dated 27th May, 1998. The appellate court affirmed the order of the prescribed authority holding that the landlord had proved the bonafide need and that the application was rightly filed by the landlord for the release of the premises. The tenant, being aggrieved by the said order of the appellate court, has filed the present writ petition. 8. The learned counsel for the petitioner made two submissions, namely, that the lower appellate court had committed a manifest error in rejecting the amendment application and since a point of law was raised, a liberal approach should have been adopted by the appellate court and should have allowed the petitioner to incorporate the amendment in the written statement on payment of cost, etc. The learned counsel for the petitioner submitted that had this amendment being allowed, the petitioner would have proved that only a piece of land was let out and that no building was ever let out to him and, consequently, the application of the landlord on this very short ground would have been rejected. The learned counsel submitted that the application of the landlord for the release of the premises was not maintainable at the instance of respondent no.3 Jagdish alias Jagrup Verma as he was not the sole owner of the premises in question and that he was only a co-owner and that all the co-owners of the premises in question were required to sign the plaint jointly and in the absence of the co-owners having not filed the application jointly under Section 21(1)(a) of the Act, the application filed only at the instance of one of the co-owners was not maintainable. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Allahabad High Court in Devi Charan Vs. Third Addl. District Judge, Muzaffarnagar & others 1980 Allahabad Rent Cases 381. 9. Having heard the learned counsel for the parties, the court finds that the plea taken by the petitioner for amendment of his written statement was rightly rejected by the appellate court on the ground of delay. Quite apart from the aforesaid, the court finds that the plea taken by the petitioner in its amendment application was an afterthought and that a plea, which was never taken by the petitioner in the first instance, was raised unnecessary by the prescribed authority on the basis of which the petitioner, consequently, filed this application raising a new ground altogether. The amendment application was belated and an afterthought and the purpose of filing the said amendment application was basically to delay the proceedings on one ground or the other and the sole consideration was based upon the document 27(k) which the lower appellate court had already given a finding that it was only an undertaking given by the petitioner that he would vacate the shop etc. and handover possession to Chunni Lal. The lower appellate court, after perusing the said document, also came to the conclusion that the land alone was not let out to the petitioner but also the shop. This finding has become final interse between the parties, which has not been questioned in this writ jurisdiction. Even otherwise, a finding which is based on appreciation of evidence and which is not perverse cannot be questioned or re-adjudicated in a writ jurisdiction. 10. In the light of the aforesaid, after accepting the finding of the lower appellate court, it was no longer open to the petitioner to file the amendment application and such amendment application was clearly in the nature of dilatory tactics adopted by the petitioner. The submission of the learned counsel for the petitioner on this aspect is patently erroneous and cannot be accepted. 11. On the second question raised by the learned counsel for the petitioner, the court finds that the contention is untenable under U.P. Act No.13 of 1972. It is not the owner alone who can file an application under Section 21(1)(a) of the Act. The law is settled that a person who receives the rent can file an application for the release of the premises. From the evidence that has been brought on record, one finds that the document 27(k) which the lower appellate court had considered is an undertaking given by the petitioner to the effect that the petitioner would vacate the premises and handover possession to the landlord Chunni Lal. Jagdish alias Jagrup Verma, who has filed the application under Section 21(1)(a) of the U.P. Act No.13 of 1372 is the son of Chunni Lal, which fact is admitted to the petitioner himself. Further, the notice given by the advocate was on behalf of the respondent no.3 Jagdish alias Jagrup Verma and, in this notice, it was categorically stated that Jagdish alias Jagrup Verma is the owner and landlord and that he requires the premises for his personal use. The petitioner in his reply admitted that respondent no.3 is the landlord. 12. In the light of the aforesaid, the court is of the opinion that the application at the instance of respondent no.3 for the release of the premises was maintainable and it was not necessary that all the co- owners were required to file the application jointly. The judgment cited by the learned counsel for the petitioner has no application with the present controversy involved. In the light of the aforesaid, the court is the opinion that the orders of the courts below releasing the premises in question does not suffer from any error or law. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 19.07.2010 LSR HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.1229 of 2010 (M/S) Ranveer Singh S/o Naubhat Singh … Petitioner Versus State of Uttarakhand and others …. Respondents Dated:- 20th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Rajendra Dobhal, the learned senior counsel duly assisted by Mr. Manoj Shah, the learned counsel for the petitioner, Mr. R. C. Arya, the learned Brief Holder for the respondent no.1 and Mr. J. P. Joshi, the learned counsel for the respondent nos.2 & 3. After the election of the primary societies, a notification under Section 29 sub-clause (3) of the Uttarakhand Cooperative Societies Act, 2003 read with Rule 437 (1) of the Uttarakhand Cooperative Societies Rules, 2004 was issued for the election of the Committee of Management of the Dugdh Utpadak Sahkari Sangh Ltd., Shikarpur, Haridwar. Pursuant to the said notification, another notification dated 30th June, 2010 was also issued under Section 29 sub-clause (3) of the Uttarakhand Cooperative Societies Act, 2003 read with Rule 450 sub- clause (4) of the Uttarakhand Cooperative Societies Rules, 2004 for determining the number of constituencies, area of constituencies, the total number of seats to be allocated to each constituency and the number of seats to be reserved for the weaker sections of the society and also invited objections relating to the same from interested persons. The petitioner filed his objection as contemplated under Rule 450 sub- clause (7) of the Rules of 2004. Thereafter, a final list has been published under Rule 450 (7) of the Rules. The petitioner, being aggrieved by the final list, has filed the present writ petition alleging that his objection has not been considered and that the said publication was in violation of Rule 455 sub-clause (3) of the Rules and clause 8 of the bye-laws of the society. Be that as it may. 13 The election process has started and, at this stage, the court is not inclined to interfere in the election process since it does not find any palpable error or patent breach of the mandatory provision of the Rules and, consequently, this court is not inclined to interfere in the publication of the final list under its extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition fails and is dismissed. However, it would be open to the petitioner to question the said final list in an appropriate election petition after the election process is over. (Tarun Agarwala, J.) Dated 20.07.2010 LSR HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.175 of 2003 (M/S) {Old No.25806 of 1997} Union of India and others … Petitioners Versus The Upper District Judge and another …. Respondents Dated:- 16th July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. V. K. Kohli, the learned senior counsel assisted by Mr. T. C. Pandey, the learned for the petitioners. No one appears for the respondent even though the list of hearing of cases has been revised. 2. For execution of certain works in the Ministry of Communication, two contracts dated 12.01.1991 and 12.02.1992 were executed between the petitioners and respondent no.2. It is alleged that with regard to non payment of the additional work carried out by respondent no.2, the said respondent gave a notice on 31st July, 1992 requesting the petitioners to pay the amount for the additional work carried out by him and, thereafter, filed an application dated 02.12.1992 under Section 20 of the Arbitration Act before the trial court. The petitioners have alleged that they had paid all the dues according to the terms and conditions of the agreement and that the security money was also returned by the petitioners on 22nd July, 1991 and that before the payment of the bill and even after the payment of the bill, no objection or demand was raised by the contractor. Consequently, as per the provision of clause 25 of the agreement, the claim had become barred by limitation. The trial court, after considering the matter, rejected the application of the opposite party holding that the application filed under Section 20 of the Arbitration Act was barred by limitation and that no dispute could be referred. The respondent no.2, being aggrieved, preferred an appeal before the Additional District Judge, which was allowed by an order dated 05.05.1997. The appellate court held that the claim was within the period of limitation as prescribed under Article 137 of the Limitation Act. The appellate court, accordingly, directed the authority concerned to hold the arbitration or nominate someone and decide the dispute between the parties. The petitioners, being aggrieved by the order of the appellate court, has filed the present writ petition. 3. The learned senior counsel for the petitioners submitted that the claim of the opposite party was barred by limitation, which was provided under clause 25 of the agreement. The learned senior counsel submitted that the period provided under clause 25 of the agreement is ninety days from the date of receiving the intimation that the bill was ready for payment and since the opposite party did not raise any objection with regard to the bill so raised by the petitioners, consequently, the opposite party would be deemed to have waived of all claims and the Government was discharged and released from all liabilities under the contract. The learned senior counsel submitted that since a specific provision was incorporated under clause 25 of the agreement stipulating a time period for raising such claims, the provision of Article 137 of the Limitation Act would not apply. In support of his submission, the learned senior counsel for the petitioners