Madras High Court
S.Selva Pandian vs P.Jawahar on 14 February, 2013
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.02.2013
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
C.R.P.(NPD) No.2200 of 2012
& M.P.No.1 of 2012
S.Selva Pandian .. Petitioner
.. Vs ..
1. P.Jawahar
2. The Commissioner,
Corporation of Chennai,
Rippon Buildings,
EVR Periyar High Road,
Chennai 600 003.
3. The Chairman,
Tamil Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai 600 005. ... Respondents
Prayer: Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 20.02.2012, made in I.A.No.20389 of 2011 in O.S.No.13676 of 2010, on the file of the XIII Assistant City Civil Court, Chennai.
For Appellant : Mr. S.Mohana Sundararajan
For 1st Respondent : Mr.P.Premkumar
For 2nd Respondent : Mrs.Karthika Ashok
For 3rd Respondent : Mr.S.Prabhu
O R D E R
Being aggrieved by the order and decretal order in I.A.No.20389 of 2011 in O.S.No.13676 OF 2010, dated 20.02.2012, dismissing the petition filed under Order 1 Rule 10(2) CPC, to implead the Tamil Nadu Slum Clearence Board, as third defendant, the present Civil Revision Petition has been filed.
2. Material on record discloses that the suit in O.S.No.13676 of 2010 has been filed by the first respondent, for a relief of declaration, injunction and damages, against the petitioner, who is the first defendant in the suit. As per the petition averments, the suit property belongs to Tamil Nadu Slum Clearance Board and it was allotted to Anna Mary. She expired, without any legal heir. The petitioner and the respondents were in possession of the suit land, measuring 400 Sq.Ft. Since the original allottee expired, it is for the Tamil nadu Slum clearance Board to decide the allotment of the site. In such circumstances, the petitioner has filed I.A., to implead Tamil Nadu Slum Clearance Board, as party to the suit, for proper adjudication. He has also prayed that the additional issue be framed, as to whether the suit is bad in law, for non-Joinder of Tamil Nadu Slum clearance Board, as defendant in the suit.
3. The respondent has filed a counter affidavit, contending inter alia that what was allotted by the Tamil Nadu Slum clearance Board, was only a leasehold right of the land to one Thiru.Alpanso and after his demise, the said right has been allotted to Anna Mary. She was put up a superstructure, vis., a thatched shed. During her lifetime, Anna Mary has executed a registered sale deed to the plaintiff/respondent. According to him, the Tamil Nadu Slum Clearance Board is nothing to do with the superstructure. The revision petitioners was only a tenant, in respect of 40 Sq.ft.
4. The respondent has further submitted that the Slum Clearance Board is not a necessary and proper party for adjudicating the dispute, between the revision petition and the first respondent, pertaining to the superstructure. He has also submitted that the plaintiff/respondent has sought for a declaration, only in respect of superstructure and not for ground site, on which, superstructure has been put up. For the abovesaid reasons, the respondent has prayed for dismissal of the petitioner.
5. Upon perusal of pleadings and submissions, vide order, dated 20.02.2012, the Court below has dismissed I.A.No.20389 of 2011.
6. Assailing the correctness of the said order, Mr.Mohana Sundararajan, learned counsel for the revision petitioner submitted that when the suit site belongs to Tamil Nadu Slum Clearance Board, to resolve the dispute between the parties in connection with the property, the Board is a necessary and proper party. He further submitted that the Court below has erred in finding that the plaintiff/respondent, has sought for a declaration only in respect of the superstructure and when the original allottee expired, without any legal heirs, the Board has every right to allot the suit site to any party and in such circumstances, the Board is a necessary and proper party for effective adjudication of the lis between the petitioner and the first respondent.
7. Per contra, inviting the attention of this Court to the relief sought for, in O.S.No.1367 of 2010 and also the valuation column and the Court fee paid in the suit, Mr.P.Prem Kumar, learned counsel for the first respondent submitted that when the plaintiff himself has sought for a declaration only in respect of a superstructure and for a consequential injunction and damages, there is absolutely no need for impleadment of Tamil Nadu Slum Clearance Board, as a defendant in the suit. He further submitted that there is absolutely no dispute as regards ownership of the land, upon which, the superstructure is put up and when the plaintiff has not sought for any declaration of title to the land and paid any court fee, participation of the Tamil Nadu Slum Clearance Board in the lis, is absolutely unnecessary. For the abovesaid reasons, he prayed to sustain the impugned order.
Heard the learned counsel for the parties and perused the materials available on record.
8. Before adverting to the rival contentions, this Court deems it fit to extract the reliefs sought for, in the suit.
(1) Declaring that the plaintiff is the absolute owner of 400 Sq.Ft., portion in the Southern half of the property bearing Door No.48, II Trust Main Road, Mandavelipakkam, Chennai 600 028, comprised in R.S.No.4436/60 Part, Block No.98 of Mylapore Village.
(2) Consequently directing the first defendant to quit and deliver the vacant possession of 360 Sq.Ft., out of 400 Sq.Ft., in the property bearing Door No.II, Trust Main Road, Mandavelipakkam, Chennai 600 028, more fully described in the schedule hereunder and shown in Black Colour in the Sketch filed along with the plaint.
(3) Consequently pass a decree for permanent injunction restraining the first defendant from interfering with the plaintiff's peaceful possession and enjoyment of the property, being 360 Sq.Ft., out of 400 Sq.Ft., in the property bearing Door No.II, Trust Main Road, Mandavelipakkam, Chennai-28, comprised in R.S.No.4436/60 Part, Block No.98 of Mylapore Village and morefully described in the schedule hereunder and shown in Black Colour in the Sketch filed along with the plaint.
9. Some of the decisions, on the aspect, as to how an application to implead a party has to be tested, are extracted hereunder:
(i) A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject matter of the suit and that such interest would be affected directed by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must be demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. [P.M.A.Hakeem v. U.P. Co-op. Spinning Mills, 2003 Vol.105 (1) Bom LR 722 (725) (BOM)]
(ii) A necessary party is one without whom no order can be effectively made. A proper is one whose presence is necessary for a complete and final decision of question involved in the proceedings [Sarvinder Singh v. Dalip Singh, 1996 (6) Scale 59 : 1996 (7) Supreme 210]
(iii) Where the impleadment of a person would change the complex of the litigation his/her presence is neither necessary for the decision of the question involved in the proceedings nor to enable the Court effectively and completely to adjudicate upon and settle the question involved in the case such a person is neither a necessary nor a proper party. [J.J.Lal Pvt. Ltd., v. M.R.Murali, AIR 2002 SC 1061 : 2002 (3) SCC 98]
(iv) The necessary consideration before the Court while determining the question of impleadment of a party to the proceedings is whether the said party is necessary or proper party and presence of such party before the Court is necessary for complete and effective adjudication of the subject-matter. [Jaspal Kaur v. Hazara Singh, 1998 AIHC 2254 (P & H); T.Bhagyalakshmi v. State of Karnataka, 1998 AIHC 2338 (Kant); Sundergarh Shramik Sangh v. The Industrial Finance Corporation of India Ltd., AIR 2005 NOC 441 (Orissa)]
(v) The basic principle to be kept in view is that the plaintiff who is the dominus litis of the proceedings cannot be compelled to contest against a party against whom he does not wish to contest. [Ramesh Kumar v. Naresh Kumar, (2002) 1 Punj LR 265 (P & H)]
(vi) When a person is neither a necessary party nor a proper party and his presence is not required for any complete and effective adjudication of the question involved in the suit, he cannot be impleaded merely because the plaintiff wished so. [Mahipal Bahadur v. Prayag Lal Rama, (1996) 3 CLT 212]
(vii) In the case of claim for easement over a space which belongs to the Municipality and injunction regarding the construction proposed in the open space is asked for, if it is not suggested that the Municipality was a party to the act of obstruction, the non-joinder of the Municipality is not fatal to the suit [S.Narayana Rao v. R.Narasinga Rao, AIR 1995 Kant. 11]
10. Prayers 4 to 8 are with reference to the damages, wrongful use, etc. Memo of valuation and the Court fee paid for the reliefs 1 and 2, as per the plaint, makes it abundantly clear that the plaintiff/respondent has sought for a declaration only in respect of superstructure and not valued the suit for the land, which belongs to Tamil nadu Slum clearance Board. Column No.1 of the Memo of Valuation is extracted hereunder:
Sl.No. Relief No. Nature Value Rs.
Court Fee Rs.
1.
I & II Decree of Declaration of plaintiff's title to the property bing superstructure (Land not valued since the same belongs to Tamil Nadu Slum Clearance Board) and consequential possession under Section 25-A of TNCF & SV Act.
72,000/-
5,400.50
11. When the plaintiff/respondent himself has sought for a declaration only in respect of the superstructure and paid appropriate Court fee, as rightly contended by the learned counsel for the respondent, there is absolutely no need for the Tamil Nadu Slum Clearance Board, to be impleaded as a party respondent. No relief is claimed against the Board. From the pleadings made in the suit, it could be deduced that the dispute is only with reference to the superstructure and therefore, as rightly observed by the Court below, to decide the above dispute, presence of the Tamil Nadu Slum Clearance Board, is absolutely not necessary. Even without the participation of the Board, on the suit, the Court below can always decide the dispute, with regard to the superstructure and decide the issues in the suit. The suit cannot be declared as bad in law, for non-joinder of the Board.
12. There is no merit in the Civil Revision Petition and the same is dismissed. As pleadings are completed, the XIII Assistant City Civil Court, Chennai, is directed to dispose of the suit, within a period of three months, from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also closed.
14.02.2013 skm To The XIII Assistant City Civil Court, Chennai.
S. MANIKUMAR, J.
skm C.R.P.(NPD) No.2200 of 2012 14.02.2013