HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CM(M) No. 158/2025 CM Nos. 3417/2025 & 4726/2025 Bharti Sethi and ors. …..Appellants Through: Mr. K.S Johal, Sr. Advocate with Mr. Karman Singh Johal, Advocate. Vs Rajiv Gupta and ors. .…. Respondents Through: Mr. Aayush Pangotra, Advocate CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 17.09.2025 1. The petitioners, through the medium of present petition have challenged order dated 23..05.2025 passed by learned Sub Judge (Special Mobile Magistrate), Jammu (hereinafter referred to as “trial Court”), whereby application of the petitioners (plaintiffs) seeking impleadment of Smt. Meenu Gupta W/o Rajeev Gupta as defendant to the suit filed by the plaintiffs against the defendants (respondent Nos. 1 to 5 herein) has been dismissed. 2. It appears that the plaintiffs have filed a suit against the defendants seeking a permanent prohibitory injunction restraining the defendants and their agents etc. from installing gate on the rear side of their plot falling in khasra No. 135 towards the plot of plaintiff No. 1 falling at tail/dead end of sub-lane of Adarsh Enclave, Lane No. II, Sec-1 Extension, Trikuta Nagar, Jammu. 3. As per case of the plaintiffs, they are owners of small plots falling in khasra No 137/min situated in Lane-II, Adarsh Sr. No. 13 2 CM(M) No. 158/2025 Enclave, Sector-1 Extension, Trikuta Nagar, Jammu and that they have purchased land measuring 14 kanals 11 marlas (approximately) and carved out small residential plots by making a provision of lane within the said land which is recorded in the ownership of original owner namely Punjab Singh S/o Anantu. It has been submitted that the defendant Nos. 1 & 2 claim to be owners of plot falling in Lane No. I of Adarsh Enclave comprised in khasra No. 135. It has been further averred that there is a partition wall which was raised more than two and a half decades ago and the same is about six feet in height. This partition wall is existing between the lane leading to the plots of the plaintiffs and Adarsh Enclave Lane No. II on one side and the land of the defendants in Lane No. I on the other side. It is averred that on 24.12.2024, the defendants attempted to make/carve out passage towards Adarsh Enclave, Lane-II from said partition wall. 4. It has been pleaded that the defendants made an unsuccessful attempt to install a gate at rear wall being the partition wall which is dividing line between Khasra No. 137/min falling in Lane-II of Adarsh Enclave and Khasra No. 135 falling in Lane-I of Adarsh Enclave by damaging the wall raised by plaintiff No. 1. When this act of the defendants was objected to by plaintiff No. 2, he was assaulted and in this regard, an FIR stands registered with Police Station, Bahu Fort, Jammu. 5. Defendant Nos. 1 & 2 contested the suit by filing their written statement in which they claimed that the plaintiffs have no concern with 20 ft wide public lane which leads to the rear side of the plot of the said defendants. It has been submitted that the said 3 CM(M) No. 158/2025 plot of land is recorded in the name of wife of defendant No. 1 and mother of defendant No. 2. It has been contended that on 24.12.2024, plaintiff No. 2 encroached upon the public land measuring 45 feet × 20 feet (Lane No. II, Adarsh Enclave, Trikuta Nagar, Jammu) and tried to raise construction of a two room structure on the public lane. He physically assaulted defendant No. 2. It has been further averred in the written statement that on 12.03.2025, plaintiff No. 2 dumped large boulders and stones on the public lane and on 13.03.2025, he got dumped sand & bajri on the public lane blocking the passage of the defendants. It has also been submitted that the defendants have to approach to their plot through this public lane which is being encroached upon by the plaintiffs. It has further been averred that the defendants have right to install a gate on the rear wall of the plot which leads to the public passage and the same in no way infringes rights of the plaintiffs. It has been averred that the defendants have right to protect their property by installing a gate on the public lane. 6. During pendency of the suit, it appears that the plaintiffs filed an application under Order 1 Rule 10 (2) CPC for impleadment of Smt. Meenu Gupta, who happen to be wife of defendant No. 1- Rajeev Gupta, as party defendant to the suit on the grounds that the plot of land on which the defendants are trying to install a gate and in respect of which, the defendants are claiming right to access through the private lane of the plaintiffs belongs to Smt. Meenu Gupta. Therefore, she is a necessary party to the suit. The said application came to be rejected by the trial Court in terms of impugned order dated 23.05.2025 which is under challenge before this Court by way of present proceedings. 4 CM(M) No. 158/2025 7. It has been contended by the petitioners that the impugned order has been passed without application of judicial mind as the trial Court has erred in holding that Smt. Meenu Gupta is neither a necessary nor a proper party of the suit. It has been contended that any decree or order which may be passed in the suit filed by the plaintiffs would not bind Smt. Meenu Gupta and, therefore, in order to effectively decide the issues involved in the suit, impleadment of Smt. Meenu Gupta as party to the suit is necessary. It has also been submitted that the plaintiffs came to know about the ownership of plot by Smt. Meenu Gupta only after the defendants filed their written statement, as such, initially she was not made party to the suit but this aspect of the matter has not been properly appreciated by the trial Court. 8. I have heard learned counsel for the parties and perused record of the case. I have also gone through the impugned order passed by the trial Court. 9. Order I Rule 10(2) CPC empowers the Court to add or strike out parties to a suit to determine the real matters in dispute. A person can be joined as plaintiff or defendant if the Court is of the opinion that presence of such person before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The test for necessary party is that there must be a right to some relief against the party in respect of the matter involved in the proceedings or no effective decree can be passed in his absence. So far as proper party is concerned, it is a party in whose absence, an effective order can be passed but whose presence is necessary for complete and final 5 CM(M) No. 158/2025 decision on the questions involved in the suit. A civil Court while exercising its power under Order 1 Rule 10(2) CPC is obliged to implead all those persons who are proper and necessary parties to the suit. 10. Adverting to the facts of the present case, the plaintiffs claim that the lane on which the defendants are trying to install a gate and are trying to have access to their plot of land is a private lane which they have carved out from their own proprietary land. The defendants on the other hand, claim that the said lane is a public lane and they have a right to use the said lane as it leads to plot of land belonging to Smt. Meenu Gupta who happens to be the mother of defendant No. 2 and wife of defendant No. 1. Thus, the defendants derive their right to use the disputed lane on the basis that the plot of land is owned by Smt. Meenu Gupta. While plaintiffs in their plaint have only levelled allegations against the defendants about attempts of encroachment/installment of gate on the lane in question, but the fact of the matter remains that the claimed right of defendants to use the said land and install gate flows from ownership of the plot by Smt. Meenu Gupta who happens to be mother of defendant No. 2 and wife of defendant No. 1. Therefore, Smt. Meenu Gupta may not be a necessary party to the suit but she is certainly a proper party without whose presence a complete and final decision on the questions involved in the suit cannot be determined. Therefore, Smt. Meenu Gupta happens to be a proper party to the suit filed by the plaintiffs. 11. The trial Court, while passing the impugned order has fallen into a grave error by focusing solely on the aspect of the right 6 CM(M) No. 158/2025 to relief against Smt. Meenu Gupta, without considering the question as to whether she is a proper party to the suit, even though she may not be a necessary party. For this reason alone, the impugned order passed by the trial Court being erroneous cannot be sustained in law. Thus, the same deserves to be set aside. 12. Accordingly, the petition is allowed and impugned order dated 23.05.2025 passed by the trial Court is set aside. Consequently, the application of the plaintiffs seeking impleadment of Smt. Meenu Gupta as defendant is allowed and she is impleaded as defendant No. 3 (A) to the suit. 13. The plaintiffs shall amend the plaint which has been necessitated on account of addition of Smt. Meenu Gupta as defendant. The amended plaint shall be filed by the plaintiffs before the trial Court within a period of three weeks from today. 14. The petition stands disposed of. (SANJAY DHAR) JUDGE JAMMU 17.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? No Tarun Kumar Gupta 2025.09.22 08:49 I attest to the accuracy and integrity of this document