IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 133 of 2003 Date of Decision: 20.12.2010 Abnash Chander Mehra ..Petitioner. Versus. Ram Rattan and others ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Petitioner (s): Mr.Bhupinder Gupta, Sr.Advocate with Ms.Charu Gupta, Advocate. For the Respondent(s): Mr.Suneet Goel, Advocate. Deepak Gupta, J (oral) 1. By means of this petition, the petitioner (hereinafter referred to as the defendant) has laid challenge to the order dated 31.3.2003 whereby the learned trial Court has dismissed the application filed by the defendant under Order 1 Rule 10 CPC for impleading certain persons as defendants in the counter claim. 2. Briefly stated the facts of the case are that Jeet Ram, predecessor in interest of the respondents, filed a suit in the trial Court. In this suit it was alleged that earlier defendant Abnash Chander 2 Mehra had filed a civil suit No.261/1 of 1983 for declaration that he was owner in possession of land comprised in khasra Nos.979, 984, 883 and 885. This suit was decreed in favour of Abnash Chander Mehra in respect of khasra Nos.883 and 885 but dismissed in respect of khasra Nos.979 and 984 and Jeet Ram was held owner in possession of land comprised in these khasra numbers. The decree was upheld in appeal vide judgment dated 26.12.1987 passed by the learned District Judge, Solan. 3. According to the plaintiffs, the defendant Abnash Chander Mehra in connivance with the revenue officials got a mutation of exchange No.561 sanctioned on 31.1.1990 wherein it was shown that khasra Nos.979 and 984 had been exchanged by the plaintiff Jeet Ram with the defendant in exchange of khasra Nos. 862/1, 882 and 881. According to the plaintiff the land comprised in these khasra numbers belonged to him even prior to the exchange and therefore the question of his entering into any exchange did not arise. On this basis the prayer made was that the 3 mutation be held to be illegal and inoperative and the defendants be restrained from withdrawing the compensation deposited by the State Government in respect of land comprised in khasra Nos.979 and 984. 4. Abnash Chander Mehra contested the suit and according to him after the decree had been passed the exchange had been entered and the land given in exchange previously belonged to him and he further averred that on the basis of this exchange the plaintiff Jeet Ram had sold the property to a number of persons. 5. Counter claim was filed along with the written statement and by means of this counter claim the defendant Abnash Chander Mehra prayed that in case the exchange is held to be invalid then the sale deeds executed by the plaintiff in favour of Kamla Devi, Gian Chand, O.P. Verma, etc. be held to be null and void and therefore wanted that these persons should be impleaded as defendants in his counter claim. 6. This application has been rejected by the learned trial court by a very cryptic order only on the 4 ground that the property which is in the possession of these persons is not the subject matter of dispute in this case and therefore are not necessary and proper parties to the suit. 7. In my view, the order shows total non-application of mind by the learned trial Court. This Court is not going into the question as to whether the exchange relied upon by Abnash Chander Mehra is a valid exchange or not. At this stage, this question cannot be decided. The plaintiff Jeet Ram alleged that this exchange was totally illegal since he himself was the owner of the land which was shown to have been exchanged. On the other hand Abnash Chander Mehra claims that he had given land in exchange of khasra Nos.979 and 984 which was comprised in khasra Nos.862/1, 882 and 881. The question whether khasra Nos.862/1, 882 and 881 belonged to Jeet Ram or Abnash Chander Mehra prior to the exchange is a question which has to be decided by the learned trial Court but in case it is found that these khara numbers belonged to Abnash Chander Mehra prior to the exchange and the 5 exchange is held to be invalid then obviously rights of the persons sought to be impleaded will also be affected. Therefore, they are necessary and proper parties to the counter claim filed by the defendant. 8. In view of the above discussion, the present petition is allowed and the order dated 20.2.2003 is set-aside and the persons mentioned in the application under Order 1 Rule 10 CPC are ordered to be impleaded as proforma defendants in the main suit and defendants in the counter claim. It is however made clear that this Court has not expressed any opinion on the merits of the dispute between the parties and any observations made herein have only been made for the purpose of deciding this petition. Parties through their learned counsel are directed to appear before the learned Civil Judge (Senior Division), Solan on 14th January, 2010. It is made clear that this case shall be tried by the learned Civil Judge (Senior Division), Solan. Since the suit was filed in the year 1994, the learned trial Court shall make an endeavour to decide the suit at the 6 earliest and in any event not later than 31st December, 2011. The Registry is directed to send back the record of the case to the court of learned Civil Judge (Senior Division), Solan immediately so as to reach the Court below on or before 14th January, 2011. December 20, 2010 ( Deepak Gupta ), J. PV