Kanhaiyalal and Another Vs. Nagar Palika Nigam and Khandwa and Another - Court Judgment

Excerpt:
civil - inpleadment - order 1 rule 10 of code of civil procedure,1908(cpc) - petitioners filed suit for declaration and permanent injunction against respondent no. 1 on ground that he was intended to demolish construction made by petitioners on ground that construction was illegal - during pendency of suit, respondent no.2 filed application under order 1 rule 10 of cpc stating that petitioners are proceeding with construction which is causing inconvenience to him and that said construction is against rules of municipal corporation, and is being carried out illegally and he prayed for impleaded as party - trial court allowed the application - hence, present revision - held, it may be noticed that respondent no. 2 in his application, seeking his impleadment, has averred that petitioners are proceeding with construction which is likely to cause inconvenience to him and would adversely affect enjoyment of his rights in his house, which is adjoining petitioner's house - even if that is true, respondent no.2 was free to indicate his rights independently - it is also clear that decree granted in favour of petitioners would not affect rights of respondent no. 2 - therefore, since respondent no. 2 is neither necessary nor proper party in suit filed by petitioners, he could not be ordered to be impleaded - respondent no. 2 has no direct interest in suit filed by petitioners, and controversy, and questions involved in suit can be finally and effectually settled without impleading respondent no. 2 - therefore, revision allowed and impugned order set aside - - 2, the suit could be effectively and completely adjudicated without the presence of intervener/respondent no. the supreme court in the said case observed that in order to settle the controversy in the said case, the plea raised by the purchasers that they were bona fide transferees for value in good faith would be required to be decided.orderv.k. agrawal, j.1. the plaintiffs/petitioners filed a suit for declaration and permanent injunction against respondent no. i/municipal corporation, khandwa. it was alleged by them that they had constructed their house after obtaining permission from respondent no. 1/corporation. according to them, the construction of their house was completed in the year 1988, and that they are residing therein from the year 1989. however, the respondent no. 1/corporation intends to demolish the construction made by them on the ostensible ground that the construction was illegally made and was not as per terms of permissionfor construction. hence, it was prayed that the defendant/respondent no. 1 be restrained from demolishing the construction raised by plaintiffs/petitioners.2. the defendant/respondent no. 1 denied the above averments. it was denied that the construction was made after obtaining permission or that it was completed in the year 1988. it was alleged that the construction was illegal and that the respondent no. 1 corporation was entitled to take action and to demolish the same.3. during pendency of the suit an application under order 1 rule 10 of cpc, was filed by the present respondent no. 2, stating that the plaintiffs/ petitioners are proceeding with the construction which is causing inconvenience to him and that the said construction is against the rules of the municipal corporation, and is being carried out illegally. he therefore, prayed that he be impleaded as party.4. by the order impugned in this revision, the learned trial court observed that the intervener/respondent no. 2 should be permitted to join as party in the suit as he has alleged that he is likely to suffer damage in view of the construction being carried out by the plaintiff/petitioner. accordingly, the said application under order 1 rule 10 of cpc, was allowed.5. learned counsel for petitioners has submitted that the petitioners have not claimed any relief against the intervener/respondent no. 2. their grievance in the plaint was that though the respondent no. 1-corporation earlier accorded permission to plaintiffs/petitioners for construction of their house, the respondent no. 1-corporation is now intending to demolish the plaintiffs house. hence, injunction was sought against the defendant/respondent no. 1. it is further submitted that since plaintiffs/petitioners are not seeking any relief against the intervener/respondent no. 2, the suit could be effectively and completely adjudicated without the presence of intervener/respondent no. 2. in view of the above, the impugned order permitting impleadment of intervener/respondent no. 2, would seriously prejudice the case of plaintiffs/petitioners, and he shall be dragged into a controversy which is not germane to the suit as filed by him. 6. as against this, learned counsel for intervener/respondent no. 2 supported the impugned order and submitted that he is the neighbour of plaintiffs/petitioners. his right of easement is adversely affected by the construction which is being raised by the plaintiffs/petitioners. it was therefore contended that he was entitled to be joined and impleaded in the suit so as to enable him to safeguard his interests. it is further submitted that the impleadment as above would result in avoidance of multiplicity of suits. learned counsel for intervener/respondent no. 2 also submitted that his impleadment in the suit has already taken place in compliance of the impugned order and the plaintiffs/petitioners have already made necessary amendments in the plaint. it was therefore submitted that interference in the impugned order is not called for.7. rule 10 (2) of order 1 of cpc, provides that the court may at anystage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. therefore, addition of the parties can be ordered by the court on either of the two cases:(i) that such person ought to have been joined in the suit or; (ii) that the presence of such a person before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. 8. in the instant case, the plaintiffs/petitioners have alleged that they have made construction after obtaining permission of the respondent no. 1-corporation. it was also alleged that the construction was concluded in the year 1988, and that the construction by them was in terms of permission granted to them. since the plaintiffs apprehended demolition of their construction by respondent no. 1-corporation, they prayed for injunction against it.9. in view of the above pleadings of the plaintiff, it is clear that neither any allegations as against the intervener/respondent no. 2 were made therein nor any relief was sought as against him. therefore, it cannot be said that the plaintiffs ought to have joined the intervener/respondent no. 2 in the suit. further the presence of intervener/respondent no. 2 was also not necessary in order to enable the court to effectually and completely adjudicate upon and settle the questions involved in the suit, as above. therefore, the intervener/ respondent no. 2 could not be treated as a necessary or proper party, in the above circumstances of the case.10. it may be noticed that the intervener/respondent no. 2 in his application under order 1 rule 10 of cpc, seeking his impleadment, has averred that plaintiffs/petitioners are proceeding with the construction which is likely to cause inconvenience to him and would adversely affect the enjoyment of his rights in his house, which is adjoining the plaintiffs house. even if that be so, the intervener was free to vindicate his rights independently. it is also clear that decree granted in favour of plaintiffs/petitioners would not affect the rights of the intervener/respondent no. 2. therefore, since the respondent no. 2 is neither necessary nor proper party in the suit filed by plaintiffs/ petitioners, he could not be ordered to be impleaded. 11. learned counsel for intervener/respondent no. 2 has relied upon savitri devi v. district judge, gorakhpur and others (air 1999 sc 976) to support his contention that the order of impleadment of intervener/respondent no. 2 was proper. however, i find nothing in the said judgment to support the contention of the learned counsel for respondent no. 2. in the said casethe plaintiffs/appellants had filed a suit for maintenance against his four sons. there was an order against the defendant's sons restraining them from alienating the suit property. however, despite the order of injunction as above, some part of the suit property was sold by the sons during the pendency of the suit. the purchasers of the property filed an application for impleadment which was allowed by the trial court. revision against the said order was also dismissed. a writ petition was filed in the high court which also suffered similar fate. the supreme court in the said case observed that in order to settle the controversy in the said case, the plea raised by the purchasers that they were bona fide transferees for value in good faith would be required to be decided. accordingly, in the aforesaid facts of that case, it was held that there was no ground for interference in the order impleading the purchasers of the property.12. the facts of the present case are however, entirely on a different footing from the facts of the said case. therefore, in the case in hand since intervener/respondent no. 2, is neither necessary nor proper party, he does not deserve to be impleaded, simply because he raised a grievance that his rights are being affected by the construction raised by the plaintiffs/petitioners or that his impleadment is warranted in order to avoid multiplicity of actions.13. in razia begum v. sahebzadi anwar begum and others (air 1958 sc 886), while considering the question of addition of parties under rule 10 of order 1 of cpc, it was observed by the apex court that the question of addition of parties is generally not a question of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. it was further observed that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation.14. in ramesh hirachand kundanmal v. municipal corporation of greater bombay and others [(1992) 2 scc 524], it was observed that it cannot be said that the main object of rule 10 of order 1, cpc, is to prevent multiplicity of actions though it may incidentally have that affect. it was further observed therein that the person to be joined must be one whose presence is necessary as a party, and that the only reason which makes a person a necessary party is that he should be bound by the result of the action and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.15. in the facts and circumstances as discussed above, it is clear that intervener/respondent no. 2 has no direct interest in the suit filed by the plaintiffs/petitioners, and the controversy, and the questions involved in the suit can be finally and effectually settled without impleading the intervened respondent no. 2. therefore, the contention raised on behalf of intervener/ respondent no. 2 that he deserves to be impleaded in the suit filed by the plaintiffs/petitioners for injunction against the respondent no. 1-corporation in order to avoid multiplicity of suits cannot be accepted.16. the contention of the learned counsel for the intervener/respon-dent no. 2 that as the plaintiffs/petitioners have already incorporated amendment in the plaint in compliance of the impugned order, interference therein should not be made, also does not appear to be of any consequence, and can not be accepted.17. in view of the above, this revision is allowed. the impugned order is set aside. the application under order 1 rule 10 of cpc, for impleadment by intervener/respondent no. 2 stands dismissed. the plaintiffs/respondents would be permitted to delete the amendments if any incorporated by them in the plaint.18. civil revision allowed.

Judgment:
ORDER

V.K. Agrawal, J.

1. The plaintiffs/petitioners filed a suit for declaration and permanent injunction against respondent No. I/Municipal Corporation, Khandwa. It was alleged by them that they had constructed their house after obtaining permission from respondent No. 1/Corporation. According to them, the construction of their house was completed in the year 1988, and that they are residing therein from the year 1989. However, the respondent No. 1/Corporation intends to demolish the construction made by them on the ostensible ground that the construction was illegally made and was not as per terms of permissionfor construction. Hence, it was prayed that the defendant/respondent No. 1 be restrained from demolishing the construction raised by plaintiffs/petitioners.

2. The defendant/respondent No. 1 denied the above averments. It was denied that the construction was made after obtaining permission or that it was completed in the year 1988. It was alleged that the construction was illegal and that the respondent No. 1 Corporation was entitled to take action and to demolish the same.

3. During pendency of the suit an application under Order 1 Rule 10 of CPC, was filed by the present respondent No. 2, stating that the plaintiffs/ petitioners are proceeding with the construction which is causing inconvenience to him and that the said construction is against the Rules of the Municipal Corporation, and is being carried out illegally. He therefore, prayed that he be impleaded as party.

4. By the order impugned in this revision, the learned Trial Court observed that the intervener/respondent No. 2 should be permitted to join as party in the suit as he has alleged that he is likely to suffer damage in view of the construction being carried out by the plaintiff/petitioner. Accordingly, the said application under Order 1 Rule 10 of CPC, was allowed.

5. Learned counsel for petitioners has submitted that the petitioners have not claimed any relief against the intervener/respondent No. 2. Their grievance in the plaint was that though the respondent No. 1-Corporation earlier accorded permission to plaintiffs/petitioners for construction of their house, the respondent No. 1-Corporation is now intending to demolish the plaintiffs house. Hence, injunction was sought against the defendant/respondent No. 1. It is further submitted that since plaintiffs/petitioners are not seeking any relief against the intervener/respondent No. 2, the suit could be effectively and completely adjudicated without the presence of intervener/respondent No. 2. In view of the above, the impugned order permitting impleadment of intervener/respondent No. 2, would seriously prejudice the case of plaintiffs/petitioners, and he shall be dragged into a controversy which is not germane to the suit as filed by him.

6. As against this, learned counsel for intervener/respondent No. 2 supported the impugned order and submitted that he is the neighbour of plaintiffs/petitioners. His right of easement is adversely affected by the construction which is being raised by the plaintiffs/petitioners. It was therefore contended that he was entitled to be joined and impleaded in the suit so as to enable him to safeguard his interests. It is further submitted that the impleadment as above would result in avoidance of multiplicity of suits. Learned counsel for intervener/respondent No. 2 also submitted that his impleadment in the suit has already taken place in compliance of the impugned order and the plaintiffs/petitioners have already made necessary amendments in the plaint. It was therefore submitted that interference in the impugned order is not called for.

7. Rule 10 (2) of Order 1 of CPC, provides that the Court may at anystage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Therefore, addition of the parties can be ordered by the Court on either of the two cases:

(i) that such person ought to have been joined in the suit or;

(ii) that the presence of such a person before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

8. In the instant case, the plaintiffs/petitioners have alleged that they have made construction after obtaining permission of the respondent No. 1-Corporation. It was also alleged that the construction was concluded in the year 1988, and that the construction by them was in terms of permission granted to them. Since the plaintiffs apprehended demolition of their construction by respondent No. 1-Corporation, they prayed for injunction against it.

9. In view of the above pleadings of the plaintiff, it is clear that neither any allegations as against the intervener/respondent No. 2 were made therein nor any relief was sought as against him. Therefore, it cannot be said that the plaintiffs ought to have joined the intervener/respondent No. 2 in the suit. Further the presence of intervener/respondent No. 2 was also not necessary in order to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit, as above. Therefore, the intervener/ respondent No. 2 could not be treated as a necessary or proper party, in the above circumstances of the case.

10. It may be noticed that the intervener/respondent No. 2 in his application under Order 1 Rule 10 of CPC, seeking his impleadment, has averred that plaintiffs/petitioners are proceeding with the construction which is likely to cause inconvenience to him and would adversely affect the enjoyment of his rights in his house, which is adjoining the plaintiffs house. Even if that be so, the intervener was free to vindicate his rights independently. It is also clear that decree granted in favour of plaintiffs/petitioners would not affect the rights of the intervener/respondent No. 2. Therefore, since the respondent No. 2 is neither necessary nor proper party in the suit filed by plaintiffs/ petitioners, he could not be ordered to be impleaded.

11. Learned counsel for intervener/respondent No. 2 has relied upon Savitri Devi v. District Judge, Gorakhpur and others (AIR 1999 SC 976) to support his contention that the order of impleadment of intervener/respondent No. 2 was proper. However, I find nothing in the said judgment to support the contention of the learned counsel for respondent No. 2. In the said casethe plaintiffs/appellants had filed a suit for maintenance against his four sons. There was an order against the defendant's sons restraining them from alienating the suit property. However, despite the order of injunction as above, some part of the suit property was sold by the sons during the pendency of the suit. The purchasers of the property filed an application for impleadment which was allowed by the Trial Court. Revision against the said order was also dismissed. A writ petition was filed in the High Court which also suffered similar fate. The Supreme Court in the said case observed that in order to settle the controversy in the said case, the plea raised by the purchasers that they were bona fide transferees for value in good faith would be required to be decided. Accordingly, in the aforesaid facts of that case, it was held that there was no ground for interference in the order impleading the purchasers of the property.

12. The facts of the present case are however, entirely on a different footing from the facts of the said case. Therefore, in the case in hand since intervener/respondent No. 2, is neither necessary nor proper party, he does not deserve to be impleaded, simply because he raised a grievance that his rights are being affected by the construction raised by the plaintiffs/petitioners or that his impleadment is warranted in order to avoid multiplicity of actions.

13. In Razia Begum v. Sahebzadi Anwar Begum and others (AIR 1958 SC 886), while considering the question of addition of parties under Rule 10 of Order 1 of CPC, it was observed by the Apex Court that the question of addition of parties is generally not a question of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. It was further observed that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation.

14. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others [(1992) 2 SCC 524], it was observed that it cannot be said that the main object of Rule 10 of Order 1, CPC, is to prevent multiplicity of actions though it may incidentally have that affect. It was further observed therein that the person to be joined must be one whose presence is necessary as a party, and that the only reason which makes a person a necessary party is that he should be bound by the result of the action and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

15. In the facts and circumstances as discussed above, it is clear that intervener/respondent No. 2 has no direct interest in the suit filed by the plaintiffs/petitioners, and the controversy, and the questions involved in the suit can be finally and effectually settled without impleading the intervened respondent No. 2. Therefore, the contention raised on behalf of intervener/ respondent No. 2 that he deserves to be impleaded in the suit filed by the plaintiffs/petitioners for injunction against the respondent No. 1-Corporation in order to avoid multiplicity of suits cannot be accepted.

16. The contention of the learned counsel for the intervener/respon-dent NO. 2 that as the plaintiffs/petitioners have already incorporated amendment in the plaint in compliance of the impugned order, interference therein should not be made, also does not appear to be of any consequence, and can not be accepted.

17. In view of the above, this revision is allowed. The impugned order is set aside. The application under Order 1 Rule 10 of CPC, for impleadment by intervener/respondent No. 2 stands dismissed. The plaintiffs/respondents would be permitted to delete the amendments if any incorporated by them in the plaint.

18. Civil Revision allowed.