Bombay High Court
Luis Roberto Vaz vs Roque Silvestre Vaz And Anr. on 30 January, 1987
Equivalent citations: AIR1988BOM300, AIR 1988 BOMBAY 300
ORDER
1. This Revision Application is directed against the order dt. 26th Aug. 1986, whereby the learned Additional Civil Judge, Senior Division, Margao, allowed an application filed by the respondents under Order 1, Rule 10(2), C.P.C. and ordered that Smt. Laura Vaz, IdelfonsoVazand his wife Beniza Vaz be impleaded as defendants in the suit.
2. The relevant facts may be stated The petitioner has filed a suit for permanent and mandatory injunctions on the grounds that he is the owner in possession of a property situated at Colva. Adjoining the said property, there is a property belonging to the respondents." The respondents started construction of a building in their own property without, however, keeping the proper setback. This construction is, therefore, according to the petitioner, illegal. Along with the plaint, an application for temporary injunction was filed, praying that the respondents be restrained from undertaking the work of any construction and carrying on with the same in their property which is adjoining the petitioner's property. Ex parte injunction was granted and, thereafter, when the matters were so standing, an application under Order 1, Rule 10(2), C.P.C. was moved stating that the property which the petitioner alleges to belong exclusively to him belongs also to other people, viz., the said Smt. Laura Vaz., Idelfonso Vaz and his Beniza Vaz. According to the respondents, the petitioner is merely a co-ower of the property. They also stated that by stopping the construction, the petitioner is not suffering any prejudice but on the contrary, grave and irreparable loss is being caused to the respondents. By the impugned order, the learned Judge allowed the said application, although the petitioner resisted the said application on the ground that he was not seeking any relief against Smt. Laura Vaz.,' Idelfonso Vaz and his wife Beniza Vaz and that he had attributed acts only to the respondents in the suit and as such, they have no cause of action against the persons which the respondents seek to be impleaded.
3. The suit was admittedly filed by the petitioner for obtaining the relief's of permanent and mandatory injunctions, restraining on one hand the respondents from raising any construction on their property without keeping the legal setback and on the other, to demolish the construction already done by them without keeping the same setback. There is no prayer of declaration by the petitioner that he is the exclusive owner of the property which is in his possession. This being so, it is obvious that even if the said property does not belong exclusively to the plaintiff, the other co-owners, if any, are riot necessary parties in a suit for permanent and mandatory injunctions. At the most, they may be proper parties.
4. The plaintiff is the dominus litus and as such, he cannot be forced to add parties to the litigation only because the other party feels that it will be convenient to join somebody else. The Court can order a plaintiff to join a particular person as a defendant exceptionally and this too when the said person is a necessary party. Such direction of the Court cannot be given in case of a proper party. In this connection, I may quote with advantage the observations made by Vimadalal, J. in Jivanlal v. Narayan, . The learned Judge observed as under : --
"The wide terms of Order 1, Rule 10(2) have given rise to several conflicting decisions of various courts in regard to its interpretation, but having considered the authorities that were cited before me in the course of the hearing of this revision application, I think the following propositions emerge therefrom: --
1. That the question of addition of parties under Order 1, Rule 10, Civil P.C. is generally not one 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 ;
2. That in a suit relating to property, like the present one in order that a person may be added as a party, he should be shown to have a direct interest in the subject-matter of the litigation ;
3. In exercising its discretion under Order 1, Rule 10, Civil P.C. the court would not "ordinarily" add a party without the concurrence of the plaintiff. (41 Bom LR 249 at p. 256) : (AIR 1939 Bom 188 at p. 193). I am bound by that decision of a Division Bench of this court, and 1 respectfully agree with the same because the plaintiff is a dominus litus as far as the litigation in question is concerned From this it would follow that it is only in exceptional cases that a party would be added as a party-defendant to the suit without the concurrence of the plaintiff .
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The above ruling which followed the Division Bench ruling in AIR 1939 Bom. 188 is binding on me, apart from the fact that I am in full agreement with the said ruling.
5. In the present case, as I already said, the other co-owners, if any, are not necessary parties in a suit like the present for permanent and mandatory injunctions. Therefore, it was not open and permissible for the trial Court to order the plaintiff to join the alleged co-owners as defendants in the suit. While doing so, the learned Judge exercised the jurisdiction vested in him, with material irregularity. It was, however, contended by Mr. Rebello, the learned counsel appearing for respondent No. 1, that if the impugned order is allowed to stand, no irreparable prejudice will be caused to the petitioners. I am afraid that this proposition cannot be accepted as it is not well founded. In fact, the petitioner, if the order is allowed to stand, may be forced to fight against parties which are not at all necessary for the relief prayed for by him and this may cause irreparable prejudice to him.
6. The result is that this Revision Application succeeds and, accordingly, the impugned order is hereby set aside. Costs by the respondents.