Bombay High Court
Harisha S/O Ramdeo Baheti (Dr.) And Ors. vs Municipal Corporation Of Amravati And ... on 30 January, 1987
Equivalent citations: 1987(3)BOMCR19
JUDGMENT M.S. Ratnaparkhi, J.
1. The petitioners Nos. 1 to 5, who were the plaintiffs before the 11th Joint Civil Judge (Junior Division), Amravati in Regular Civil Suit No. 575 of 1986 have challenged the order passed by that Court on 4-10-1986 allowing the stranger's application to be joined as a co-defendant in the suit.
2. The controversy covers a very narrow compass and it springs from the following undisputed facts. Plot No. 6/11 adjoining the Wadnera road at Amravati belongs to the plaintiffs and the adjoining land to the west of the building standing thereon belongs to the stranger (the non-applicant No. 2). Admittedly the ground floor has already been constructed on the plot belonging to the plaintiffs and this structure has been in existence since long before the institution of the present suit. The plaintiffs wanted to construct the first and second floors over the ground floor and for that they had submitted necessary application to the Amravati Municipal Corporation. It is contended that inspite of the lapse of 2 months from the presentation of this application, nothing was learnt from the Municipal Corporation. Under the Bye-laws, when nothing is learnt from the Corporation the permission is deemed to have been granted as asked for.
3. The plaintiffs, therefore, started raising the construction over the first floor. When this work of construction was going on, the Amravati Municipal Corporation (present non-applicant No. 1) served a notice on the plaintiffs apparently under sections 254 and 255 of the Municipal Corporation Act, directing them to demolish the structure over and above the first floor, because according to them, this structure has been raised without any permission from the Municipal Corporation. On receipt of this notice, the plaintiffs instituted Regular Civil Suit No. 575 of 1986 claiming three reliefs. As the controversy centres round these reliefs, it will be proper at this stage to reproduce them. The reliefs claimed are :
"(a) The Court be pleased to hold and declare that the plaintiffs Nos. 1 to 5 having submitted an application for construction on 20-12-1985, with all necessary requirements including the registration charges of the defendant and the defendant having failed to act, though obligatory on the part of the defendant during the statutory period after the period of application, it is deemed that the plaintiffs 1 to 4 have got the permission to make the constructions of the first and second floors on the existing ground floor shop premises and that by deeming fiction the permission is deemed to have been granted in favour of the plaintiffs and the construction is legal and valid.
(b) The plaintiffs claim further declaration that the alleged notices dated 2-6-1986, 9-7-1986 and 23-7-1986 are mala fide and fabricated notices received by the plaintiff No. 1 on 17-6-1986 from the defendant are illegal, unjust, improper and bad in law also inoperative and be quashed as void ab initio and it be declared that no action can be taken on the same.
(c) In addition to the two-fold declarations as above, the Hon'ble Court be pleased to order injunction in the prohibitory nature restraining the defendant, their agents, employees, officers etc. from interfering with the construction of the plaintiffs and from taking any action or steps to demolish the construction by the plaintiffs or part of the same and that the injunction in the prohibitory nature be ordered against the defendants in favour of the plaintiffs."
4. It is interesting to note at this stage that the Amravati Municipal Corporation was the only defendant added to the suit. The reason appears to be obvious. It is only against the defendant No. 1 that the reliefs of declaration as well as injunction were claimed. However before the Municipal Corporation could file its written statement, the present non-applicant No. 2 preferred an application before the trial Court purporting to be one under Order 1, Rule 8-A and Rule 10 read with section 151 of the Code of Civil Procedure. This application is Exhibit -13 before the trial Court. The allegations made in that application were that he is the owner of adjoining land. He has purchased it by registered sale deed dated 21-3-1983. It was further averred that the plaintiffs had applied to the Municipal Corporation for permission to raise further construction over the same plot. It was alleged that as he was interested in the lis, he ought to have been made a party. He, therefore, requested the Court to be made as a co-defendant This application has been opposed by the present plaintiffs. The main objection was that no relief of any nature was claimed against this gentleman. As such he was neither a necessary nor a proper party to the suit. On this count they claimed that the application deserved to be rejected.
5. The Court heard both the parties and passed the following order :
"In view of the sale deed and map filed by the applicants, it appears that the applicant's presence is necessary while deciding the present matter. Hence application allowed. The plaintiff is directed to make the present applicant a party to the suit. According to the plaintiff to that effect and issue copy of amended plaint to the present applicant within 5 days."
This order has been challenged by the plaintiffs before this Court in revision. All the contesting parties have argued their respective cases at length.
6. The necessity to join the non-applicant No. 2 as party to the suit would definitely depend upon the reliefs that have been claimed. It shall have to be examined whether these reliefs cannot be granted without the Intervention and participation of the non-applicant No. 2. If it is so, then he would definitely be called as a necessary party. Advertence to sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure would not be out of place. Under this provision a person "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" will be a necessary party and will have to be added. The Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, observed :---
"To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled; it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding".
Though these observations came to be made while entertaining the matter under write jurisdiction and not under the Code of Civil Procedure, the principle set forth is equally salutary. The description as given in sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure, coupled with the observations cited supra would give the sufficient idea regarding the meaning of the term "necessary and proper parties."
7. It is equally true that the nature of controversy involved would equally decide the status of a party, namely, whether it is necessary or not. Both questions have to be considered side by side.
8. From that point of view the scope of the controversy raised in this litigation would require close scrutiny. A declaration simpliciter has been claimed against the Municipal Corporation, and the Municipal Corporation alone and the declaration is to the effect, that an application for per mission for raising a construction having already been made and no reply having been received from the Corporation within 60 days thereafter, a permission to raise that construction must be deemed to have been granted by the Corporation by fiction. This fiction is based upon the bye-laws that are prevailing and binding vis-a-vis the Municipal Corporation. Looking to the nature of this declaration, it can easily be said that this declaration has been claimed not as against the whole world, but only against the Municipal Corporation because it flows from the very bye-laws of the Municipal Corporation itself. As far as the other declaration is concerned, the plaintiffs claimed that the notices issued by the Municipal Corporation are bad in law. As already pointed out, there are four notices. The first two notices are dated 2-6-1986. They are on the printed forms with blanks filled in manuscript. The subject of both these notices is "regarding the new construction commenced without permission" and these notices appear to have been given under Rule 53 of the Maharashtra Regional and Town Planning Rules, 1966. To reiterate once again, these notice have been served on the plaintiffs because of the commencement of the construction work which has been undertaken without obtaining the previous permission of the Municipal Corporation.
9. Another notice dated 9-7-1986 reiterates that the work of construction has been commenced without the previous permission of the Municipal Corporation. It is also averred that the proposed construction consumes larger floor space index than permissible under law. Another objection was that the gallery proposed under the new construction was protruding towards the limits of plaintiffs' plot. These were the different defects which were pointed out. The plaintiffs have claimed a declaration that all these notices are bad in law, ultra vires so on and so forth. Needless to say that this declaration also is claimed only against the Municipal Corporation and none else. Reason is clear. The Municipal Corporation alone is the author of these different notices and it was enough to claim a declaration only against the Municipal Corporation. Coming to the thirdly, an injunction is claimed and that too only against the defendant-Municipal Corporation. The Municipal Corporation is sought to be restrained from interfering with the construction of the plaintiffs or form taking any action or steps to demolish the construction raised by the plaintiffs. These are the three reliefs.
10. It is on the background of these reliefs that this Court has to consider whether the presence of the non-applicant No. 2 is necessary for adjudicating the real controversy involved in this litigation. Though it is not very clear from the application of the non-applicant No. 2 himself before the trial Court as to why his presence is necessary, it was urged before me that his rights are likely to be affected though not directly, still at least incidentally he being owner of the plot adjoining the plot in suit. It was, therefore, contended that the plaintiffs having already consumed a larger floor space index than was normally permissible, perhaps it may affect the floor space index available to the non-applicant No. 2. Thus what was tried to be shown before me was that there is likelihood of some finding or some observations going against him and, therefore, to meet them his presence before the Court is not only proper but is also necessary.
11. Before considering the remote effects, it will be necessary to consider at this stage whether the non-applicant No. 2 is concerned in any way with the reliefs claimed in this suit? I have already adverted to the reliefs in details. At the cost of repetition, I may say that whatever declarations are sought by the plaintiffs, they are only against the Municipal Corporation and not against the present non-applicant No. 2. No question of title has been introduced at least by the plaintiffs inasmuch as the plaintiffs start with a case that there is already a ground floor which has been constructed according to the specifications and permission granted by the Municipal Corporation and whatever further construction is being made, it is only over and above the first floor. This is practically an admitted position. Whether the applicants-plaintiffs applied for permission, whether the Municipal Corporation granted that permission or whether the non-granting of the permission for a specified period and thereafter, amounts to fictional permission is a position with which the plaintiffs and the Municipal Corporation are the only parties concerned. As far as that declaration is concerned, the non-applicant No. 2 has hardly to say anything in the matter. Going a step further, it can be said with certainty that he is not at all concerned with this matter.
12. The matter does not change even regarding the claim for injunction. The Municipal Corporation is insisting on the demolition on the ground that the construction has been made without permission of the Corporation. The plaintiffs on the other hand insist that they have a fictional permission. This dispute is only between the Corporation on the one hand and the plaintiffs on the other. The non-applicant No. 2 has hardly anything to do with this dispute. He can hardly lead any agitation regarding this point.
13. Looking from this angle, it cannot be said by any stretch of imagination that the non-application No. 2 is really concerned with this controversy or that he is a necessary party to this litigation in the sense that the controversy cannot be decided expect with his presence and participation. He cannot even be called as a proper party because he is not concerned either with the relief of declaration or with the relief of injunction as is apparent from the plaint. His position at the most is of a neighbour whose plot adjoins the first floor already standing. No question of title has been raised in this suit. No encroachment has been alleged. The further construction that is going on is only over and above the ground floor that is already in existence. In fact a compromise decree in Regular Civil Suit No. 250 of 1986 between the present plaintiffs and the non-applicant No. 2 was produced before me yesterday during the course of the arguments in which the non-applicant No. 2 agreed to the plaintiffs' construction of the ground floor and also the upper floors subject to the conditions that the wall will be a dead wall. This clinches the whole issue as far as the real controversy is concerned.
14. The concept of "necessary party" has been elaborately considered. In Narain Chandra Garai v. Matri Bhandar Pvt. Ltd., , wherein it was observed :---
"It would appear, therefore, that persons may be added as a party only in two cases viz. (1) When he or she ought to have been joined as a defendant and is not so joined, (2) When without her presence the question in the suit cannot be completely decided."
This is nothing but the reproduction of sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure. What the Calcutta High Court has observed is;
"The main consideration seems to be whether or not the presence of the petitioner is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in this suit. If the question at issue between the parties can be worked out without anyone else being brought in the stranger should not be added as a party. As already stated before, the petitioner cannot be considered to be a proper or a necessary party. That she may be eventually affected by the judgment or in the execution decree against the defendant No. 2 is not a cogent ground to make her a party."
15. A similar view has also been taken in Kaka Singh v. Rohi Singh, A.I.R. 1978 Panjab & Haryana 30. My attention was also invited to a ruling reported in Smt. Kantaben v. Parsi Dairy Farms, . The facts involved in that case were rather different. The Municipal Corporation of Greater Bombay had issued a notice of demolition of the house and a tenant occupying that portion was served with the notice. In a suit the landlord put in an application for joining himself as a party because according to him he was the real person interested in the subject-matter and it would be he who would suffer by the decree. In those peculiar circumstances, it was held that the landlord would be a necessary party to the litigation.
16. Thus the real criteria if applied in the proper perspective, would unclinchingly show that the present non-applicant No. 2 cannot come into the picture at all. He has nothing to do with the Municipal Corporation granting or refusing the permission, nor has he to do anything with the Municipal Corporation serving notices of demolition on some count or the other on the plaintiffs. It is admittedly purely a dispute between the plaintiffs on one hand and the Municipal Corporation on the other. Even assuming that the declaration as claimed by the plaintiffs is granted, no obligation would be thrown on the non-applicant No. 2. Similarly an injunction claimed against the Municipal Corporation would not in any way affect the right of the non-applicant No. 2.
17. It was in fact contended by Mr. Aney, learned advocate for the non-applicant No. 2 that his client owns a plot which adjoins the present construction. He stated that any declaration issued in favour of the plaintiffs may ultimately affect his rights-though not directly, still indirectly. For example, he urged before me that perhaps the enlargement of floor space Index available to the plaintiffs may ultimately reduce the floor space index available to him. In fact as far as the present controversy is concerned, the Court is not called upon to decide as to what floor space index is available to the plaintiffs. The first floor is already constructed and there is no dispute regarding that. The subsequent floors, needless to say, would be correlative to the first floor. Even no declaration to that effect has been claimed. In these circumstances, it is difficult to appreciate the arguments of Mr. Aney that his client may be affected-though not directly, still indirectly.
18. Assuming for the time being that his client may be indirectly or remotely affected, that cannot clothe him with the status of a necessary party to the litigation. He would have his own remedies under common law and he would be at liberty to pursue his remedy. I would merely refer to Banarasidass Durgaprasad v. Panna Lal Ram Richpal, where it has been observed :
"I would prefer to steer a middle course and draw the golden mean. As a rule, the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief."
It was further observed :
"In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as defendant to his suit. Only in exceptional cases where the Court finds that addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff."
19. The sum and substance of what has been said so far is that scope of the litigation before the trial Court is very much limited that the non-applicant No. 2 can hardly come into picture. The issues to be decided in that suit are purely the issues in between the plaintiffs on the one hand and the Municipal Corporation on the other. No right to property is put in dispute. No relief has been claimed which will either directly or indirectly affect any parties except the parties before the Court. Even assuming for the time being that there may be a remote possibility of the non-applicant No. 2 being affected, he cannot, even by any stretch of imagination be called as a necessary party.
20. The trial Court has, however, taken a view that there can be no adjudication except with the addition and participation of the non-applicant No. 2. There is nothing in the order passed by the trial Court as to why his presence would be necessary and this is inspite of the fact that the controversy is very much limited. It is also to be noted at this stage that inspite of the strong objection raised by the plaintiffs, the trial Court has superimposed the non-applicant No. 2 in the litigation. An unwanted party against whom no relief is claimed and against whom no cause of action has accrued has been directed to be joined. This would perhaps be in contravention of the well established principles underlined in Kakasingh's case cited supra.
21. Mr. Aney, learned Advocate for the non-applicant No. 1, however, urged before me that this Court is exercising its revisional jurisdiction under section 115 of the Code of Civil Procedure. It is necessarily limited and propriety would not demand interference with an order passed by the trial Court, particularly when there is no question of jurisdictional error. It is true that the trial Court acted within the ambit of its jurisdiction and it exercised that jurisdiction which it had under law. The scope and extent of revisional jurisdiction is not necessarily restricted to only jurisdictional error. This High Court under sub-clause (c) of Clause (1) of section 115 of the Code of Civil Procedure can also exercise its revisional jurisdiction when it finds that the trial Court has exercised its jurisdiction with material irregularity. It is apparent from the record that the non-applicant No. 2, though not a party necessary for the decision of the real controversy involved in the litigation has been superimposed on the plaintiffs inspite of their strong objection. It was a right of the plaintiffs to select their opponent against whom they want a decree or a relief. The Court has again stepped further and commanded the plaintiffs to join some person whom they do not want. This is inspite of the fact that the controversy can well be settled and decided without the presence of this unwanted person. This is according to me a clear case of acting with material irregularity and this Court would be justified in exercising the revisional jurisdiction in this case. In Kak Singh's case (supra) it has been held that the High Court could interfere in revision if it finds some material irregularity or illegality in the order.
22. Thus the order passed by the trial Court is bad in law and it needs to be corrected, at the hands of this Court with the result that the revision deserves to be allowed. Rule is made absolute. The order passed by the trial Court directing addition of the non-applicant No. 2 as a co-defendant is set aside and the application filed by the non-applicant No. 2 before the trial Court for adding himself as a party stands dismissed. The non-applicant shall bear the costs of the applicant in addition to his own.