Karnataka High Court
Shrinivas Kongovi vs Smt. Vijaya Kumari Shanmugam on 31 May, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION No.14690/2017 (LB-BMP)
BETWEEN:
SHRINIVAS KONGOVI
S/O LATE K. DHRUVA RAO,
AGED ABOUT 64 YEARS,
RESIDING AT NO.677, 9TH 'A' CROSS,
WEST OF CHORD ROAD 2ND STAGE,
BASAVESHWARANAGAR,
BENGALURU-560086. ... PETITIONER
(BY SRI SRIRANGA S., ADV.)
AND:
1. SMT. VIJAYA KUMARI SHANMUGAM
W/O. A. V. SHANMUGAM,
AGED ABOUT 80 YEARS,
OCC: RETIRED GOVT. EMPLOYEE,
RESIDING AT NO.676, 9TH 'A' CROSS ROAD,
WEST OF CHORD ROAD, 2ND STAGE,
BENGALURU-560010.
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
NR SQUARE,
BENGALURU-560001.
3. THE ASSISTANT ENGINEER
NAGAPURA SUB-DIVISION,
B.B.M.P., WARD NO.67,
BENGALURU.
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4. THE ASSISTANT EXECUTIVE ENGINEER
BBMP, MAHALAXMIPURAM DIVISION,
NAGAPURA SUB-DIVISION,
B.B.M.P. WARD NO.67,
BENGALURU. ... RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI KUMAR J. C., ADV. FOR C/R-1;
DR. R. RAMACHANDRAN, ADV. FOR R2-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 19.12.2016 PASSED BY THE KARNATAKA
APPELLATE TRIBUNAL AT BENGALURU ON I.A.NO.IV IN APPEAL
NO.640/2016 AT ANNEXURE-W AND ALLOW I.A.NO.IV FILED BY
THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER
The petitioner is aggrieved by the order dated 19.12.2016, passed by the Karnataka Appellate Tribunal Bengaluru. By the impugned order, the learned Tribunal has dismissed the petitioner's application filed under Regulation 40 (a) of the Karnataka Appellate Regulations, 1979 ("the Regulations", for short), for being impleaded as a party-respondent, in an appeal filed by the respondent, namely Smt. Vijaya Kumari Shanmugam, wherein, she had challenged the Confirmation Order dated 10.06.2016, passed by the respondent No.3, Assistant Engineer, Bruhat 3 Bengaluru Mahanagara Palike, Bengaluru (" the BBMP", for short).
2. Briefly the facts of the case are that, the petitioner, Mr. Shrinivas Kongovi, claims to be the owner of a residential property, bearing No.677, 9th 'A' Cross, West of Chord Road, 2nd Stage, Bengaluru-560 086. According to the petitioner, he resides in the said property along with his family members.
3. According to the petitioner, Smt. Vijaya Kumari Shanmugam, the respondent No.1 is the owner of residential property bearing No.676, 9th 'A' Cross, West of Chord Road 2nd Stage, Basaveshwaranagar, Bengaluru-560 086. Thus, the petitioner and the respondent No.1 are neighbours, as they are the owners of the adjacent plots.
Furthermore, according to the petitioner, the respondent No.1 entered into a Joint Development agreement, dated 24.04.2015, for constructing a multi- storied residential apartment on her property. Subsequently, the sanctioned plan was approved by the 4 respondent No.2, and the construction began. However, when the petitioner discovered that the construction undertaken by the respondent No.1 was in violation of the sanctioned plan, on 02.05.2016, he addressed a letter to the BBMP, pointing out the illegal construction raised by the respondent No.1. Consequently, the BBMP, issued a notice on 10.05.2016 to the first respondent, clearly stating that, upon spot inspection it was discovered that there was violation of the sanctioned plan with regard to the set back measurement. The BBMP directed the respondent No.1 to file her reply to the said notice.
4. Notwithstanding the notice issued by BBMP, on 13.05.2016, the petitioner again sent a letter to the BBMP, pointing out the violation of sanctioned plan committed by the respondent No.1. Consequently, on 25.05.2016, the BBMP issued a provisional notice under Section 321 (1) of the Karnataka Municipal Corporation Act, 1976 ("the Act", for short). The BBMP directed the first respondent to remove all the illegal construction, and to bring the construction in conformity with the sanctioned plan. On 10.06.2016, the 5 BBMP passed a confirmation order under Section 321 (3) of the Act. It directed the respondent No.1 to report compliance of the order dated 25.05.2016, and to stop the construction.
5. Having sent two notices to the respondent No.1, on 13.06.2016, the BBMP informed the petitioner that upon the complaint filed by the petitioner, legal action has been taken by the BBMP. However, on 17.06.2016, the petitioner again complained to the BBMP that despite the notices, the construction was continuing unabated.
6. Since the petitioner was aggrieved by the inaction on the part of the BBMP, the petitioner filed a writ petition, namely W.P.No.36368/2016 before this Court. By order dated 11.07.2016, this Court directed the Assistant Executive Engineer, BBMP, to file an affidavit as to why he had failed to take any action pursuant to the confirmation notice passed under Section 321 of the Act.
7. On 20.07.2016, the learned counsel for BBMP informed this Court that since respondent No.1 herself was removing the illegal construction in terms of the order dated 6 11.07.2016, no action needs to be taken by the BBMP. However, notwithstanding the submission made by the learned counsel for BBMP, the petitioner pointed out that in fact, the illegal construction was not being razed by the respondent No.1, but instead the illegal construction continued to be raised by the respondent No.1. Considering the diametrically opposite position being taken by the petitioner and the BBMP, by order dated 08.08.2016, this Court appointed Mr. Y.V. Thimmaraju, Architect in the panel of respondent-Corporation as the Court Commissioner, and directed him to conduct the spot inspection and submit his report.
8. Since the respondent No.1 was aggrieved by the said order, she filed a writ appeal, namely W.A.3320/2016 before a learned Division Bench of this Court. Before the learned Division Bench, the respondent No.1 pleaded that she had already challenged the two notices issued by the BBMP, before the learned Tribunal. Moreover, on 27.07.2016, the learned Tribunal, in fact, had granted stay in her favour. By order dated 20.08.2016, the learned Division Bench had 7 stayed the operation of the order dated 08.08.2016, passed in W.P.No.36368/2016, and stayed the further proceedings before the learned Single Judge.
9. When things stood thus, on 19.10.2016, the petitioner filed an impleading application under Regulation 40 (a) of the Regulations, before the learned Tribunal. However, by order dated 19.12.2016, the learned Tribunal has dismissed the said application. Hence, this petition before this Court.
10. Mr. Sriranga, the learned counsel for the petitioner, has relied on the cases of S. Mohanram v. Smt. Susheela Ranganath and Others [W.P.No.11780/2014, decided by this Court 17.03.2014], Satya Achayya v.
Mr. M.A. Mohammed Amanullah and Others [W.P.No.37915/2014 decided by this Court on
09.09.2014], Citizens Forum for Safe Environment v.
The Commissioner, BBMP & Others [W.P.No.31078/2015 decided by this Court on
16.03.2016], and lastly on two decisions of learned Division 8 Bench of this Court in the cases of Mr. M. A. Mohammed Maullah v. Ms. Satya Chayya [Writ Appeal No.2525/2014 decided on 27-02-2015] and of Sri. Shantesh Gureddi v. The Commissioner, BBMP and Others [W.A.Nos.621-622/2016 & 802-804/2016, decided on 14.03.2017] in order to buttress his plea that in catena of cases, this Court has held that if a person were challenging the notice issued by the BBMP under Section 321 of the Act, the party at whose instance the notice has been issued should be permitted to be impleaded as a party- respondent in an appeal pending before the learned Tribunal. Therefore, according to the learned counsel, since the rights of the petitioner are likely to be adversely affected by any order passed by the learned Tribunal, the petitioner was either a proper, or a necessary party to the appeal pending before the learned Tribunal. Hence, the learned Tribunal was not justified in rejecting the application for being impleaded filed by the petitioner. Thus, the impugned order deserves to be interfered with.
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11. On the other hand, Mr. Kumar J. C., the learned counsel for respondent No.1, claims that in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Others [(1992) SCC 524] the Hon'ble Supreme Court has extensively dealt with the issue of impleading of a necessary, or a proper party under Order 1, Rule 10 (2) CPC. Regulation 40 (a) of the Regulations and Order 1, Rule 10(2) CPC are similar in nature. Thus, any interpretation of the latter can be considered while examining the scope of the former provision. Therefore, the learned Tribunal was justified in relying on the case of Ramesh Hirachand Kundanmal (supra) and in rejecting the petitioner's application.
Secondly, relying on the case of Ramesh Hirachand Kundanmal (supra), in two cases, namely in Sri. Chandrappa v. M/s. Garudachala Associates Private Ltd. and Others [(2015) 2 Kant LJ 483], and Malleshwaram Residents Welfare Association (R) v. Smt. Kamlamma and Others [W.P.No.8563/2017 decided by this Court on 03.04.2017] two learned Single Benches 10 of this Court have upheld the order passed by the learned Tribunal, whereby the learned Tribunal had rejected the application for impleadment filed by a third party.
Thirdly, the case of Mr. M. A. Mohammed Amanullah (supra) was an appeal filed against the order of the learned Single Judge in the case of Ms. Satya Achayya (supra). However, in the case of Mr. M. A. Mohammed Amanullah (supra), the learned Division Bench has not noticed the judgment of the Hon'ble Supreme Court in the case of Ramesh Hirachand Kundanmal (supra). Thus, the judgment of this court in the case of Mr. M. A. Mohammed Amanullah (supra) is not a binding precedent.
12. Similarly, according to the learned counsel, in the case of Mr. Shantesh Gureddi (supra), although the learned Division Bench has referred to the case of Ramesh Hirachand Kundanmal (supra), but has distinguished the said case on factual matrix. The leaned Division Bench has not considered the ratio of Ramesh Hirachand Kundanmal (supra). Therefore, even the judgment in the case of 11 Mr. Shantesh Gureddi (supra) does not have a binding force. Thus, neither of the judgments of the learned Division Bench resolve the issue.
13. Therefore, according to the learned counsel, this court is left with only a series of judgments, all pronounced by learned Single Benches of this Court, which are contradictory to each other. In one set of cases, namely in the case of S. Mohanram (supra), Satya Achayya (supra), Citizens Forum for Safe Environment (supra), this Court is of the view that a third party at whose behest notice has been issued by the B.B.M.P., should be impleaded as a party-respondent. Yet, in another set of cases, namely in the cases of Mr. Chandrappa (supra), and Malleshwaram Residents Welfare Association (R) (supra) this Court has taken a contrary view. Therefore, the issue is still alive, and still needs to be settled once and for all. Hence, the learned counsel pleads that the issue should be referred to a larger Bench in order to settle the issue once and for all. According to the learned Counsel, the issue is: Whether a party at whose behest, BBMP has issued a notice under Section 321 12 (1) (2) and 321 (3) of the Act, should be permitted to be impleaded as a party-respondent in an appeal filed by the party who has challenged the notice issued by the B.B.M.P., before the Tribunal or not ?
14. Heard the learned Counsel for the parties, perused the impugned order, and considered the case law cited at the Bar.
15. The stand being taken by the learned Counsel for the parties, at the first blush, appears to be persuasive. But on closer examination, the stand is not convincing. The learned counsel for the respondents is not justified in claiming that this court is saddled with contradictory judgments. For, once the Hon'ble Supreme Court has settled the issue, even if there were prima facie contradictory opinions within this Court, such orders would not come in the way of deciding the present case. For, under Art. 141 of the Constitution of India, the decision of the Hon'ble Supreme Court is binding on the High Courts, the Subordinate Courts and the Tribunals. It is the law of the 13 land. Moreover, the juxtaposition of all the cases emanating from this Court reveal another story. Thus, there is no need to refer the issue raised by the learned counsel for the respondents to a larger Bench.
16. The issue being raised by the learned Counsel is squarely covered by the decision of the Apex Court in the case of Ramesh H. Kundanmal (supra). In the said case, the appellant, Ramesh H. Kundanmal, was in possession of the service station erected on the land held by respondent No. 2, therein, the Hindustan Petroleum Corporation Ltd., as a lessee. The Respondent No. 1, the Municipal Corporation of greater Bombay issued a notice to the appellant under Section 351 of the Municipal Council Act with regard to the alleged illegal construction raised by the appellant on the first floor of the service station. Since the appellant was aggrieved by the said notice, he filed a suit for injunction against the Municipal Council. During the proceeding of the suit, the respondent No. 2 filed an application for being impleaded as party defendant in the suit. The learned trail court allowed the application. The appellant challenged the 14 said order before the High Court. The High Court upheld the order passed by the learned trial court. Thus, Mr. Ramesh Hiralal Kundanmal filed a SLP before the Apex Court.
17. The issue before the Hon'ble Supreme Court was whether respondent No. 2 is a necessary or proper party to be joined as defendant under Or. 1, Rule 10 of CPC, in the suit instituted by the appellant against respondent No. 1, or not?
18. Answering this issue, the Hon'ble Supreme Court observed as under:
The case really turns on the true construction of the rule in particular the meaning of the words "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".
Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. 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. The addition 15 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.
19. The Hon'ble Supreme Court further opined as under:
It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so 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. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action.16
20. The Hon'ble Supreme Court further observed as under:
It is pointed out that the subject matter in the suit is the notice issued by the Municipal Corporation to the appellant and the issue is whether it is justified or not. The Hindustan Petroleum Corporation Limited is interest in supporting the Municipal Corporation and sustaining the action taken against the appellant. But that does not amount to any legal interest in the subject matter in the sense that the order, if any, either in favour of the appellant or against the appellant would be binding on this respondent. It is true that being lessee of the premises, the Hindustan Petroleum Corporation Limited has an answer for the action proposed by the Municipal Corporation against the appellant, but for the purpose of granting the relief sought for by the appellant by examining the justification of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer.
21. The Apex Court, therefore, concluded as under:
The courts below, therefore, failed to note that respondent 2 has no direct interest in the subject matter of the litigation and the addition of the respondent would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. The joining of the party would embarrass the plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule in such cases.17
22. The principles annunciated by the Hon'ble Supreme Court can be summarized as under:
1. The question of impleadment of a party has to be decided on the anvil of Order 1, Rule 10 CPC.
2. The question of impleadment would revolve around two issues, namely is the impleader a necessary party? Or is the impleader a proper party to the suit?
3. A necessary party is one without whom no order can be made effectively.
4. A proper party is one in whose absence an effective order can be made, but whose presence is essential for the complete and final decision on the question involved in the suit.
5. What makes a person necessary party is not merely that he has relevant evidence to give on some of the questions involved; it would make the party merely a witness in the case.18
6. It is not only merely that the party has an interest in the correct solution of some questions involved and is in a position to advance relevant arguments. Even this would not make the person a necessary party.
7. What makes a person a necessary party is that he would be bound by the result of the action. Therefore, the question to be settled must be a question in the action which cannot be effectually and completely settled unless he is a party.
8. Most importantly, the impleader must have a direct and legal interest in the action. The direct and legal interest would be if the order passed, either in favour or against the plaintiff, would be binding on the impleader.
9. Even if the impleader has a different cause of action against the plaintiff, the impleader cannot be impleaded in the suit. For, the controversy in the suit cannot be enlarged by introducing a different cause of action in which the impleader may be interested in. After all, the object of Order 1, Rule 10 (2) CPC, is not to curtail 19 multiplicity of litigation. Curtailing multiplicity of litigation is merely a consequence of impleading a third party to the suit, but is not the object of Order 1, Rule 10 (2) CPC.
23. Of course, Mr. Sriranga, the learned Counsel for the petitioner has relied upon two judgments of learned Division Benches of this Court in order to support his plea that a third party should be impleaded as a party- respondent in case the notice were issued by the BBMP at the instance of such a party. But in the case of Mr. M. A. Mohammed Amanullah (supra), the learned Division Bench did not consider the case of Ramesh Hirachand Kundanmal (supra). Since the learned Division Bench has not considered the relevant case law, the decision of the learned Division Bench is not a binding precedent.
24. Although in the case of Sri. Shantesh Gureddi and Another (supra), the learned Division Bench did refer to the case of Ramesh Hirachand Kundanmal (supra), but it distinguished the case on factual matrix. The case of 20 Sri Shantesh Gureddi and Another was an appeal which arose from the case of Citizens Forum for Safe Environment (supra).
25. Before the learned Single Judge, the Forum had challenged an order dated 26.06.2015, whereby the learned Karnataka Appellate Tribunal had rejected the Forum's application for impleadment. By order dated 16.03.2016, the learned Single Judge had allowed the writ petition. Therefore, the respondent therein, Sri Sangesh Gureddi and Smt. Jyothi Gureddi, challenged the order dated 16.03.2016 before the learned Division Bench.
26. Although the learned Division Bench did refer to the case of Ramesh Hirachand Kundanmal, but it distinguished the said case from the case of Sri. Shantesh Gureddi and Another. The learned Division Bench observed as under:
The judgment in the case of Ramesh Hirachand Kundanmal is also distinguishable, as the complainants who sought to add them as parties did not raise any objection as to the two chattels on the terrace stated to have been erected by the owner of the 21 property. It was established on facts that the chattels were movable and meant for storing implements of the mechanics.
27. The learned Division Bench further opined as under :-
We are of the opinion that the power to add a party to a proceeding is not of initial jurisdiction, but of a discretionary nature.
We feel that some of the residents of the locality have pointed out that another resident of the same locality has constructed a building in deviation of the sanctioned building plan. The municipal authorities have passed an order of demolition. Against it, an appeal was filed by the residents and there is an order of status quo.
There is no attempt on the part of the authorities of the Mahanagar Palike to get the that order vacated and get the alleged unauthorized construction demolished.
Under the apprehension that the matter may not be pursued before the Tribunal properly, some of the complainants have come forward seeking for their addition as parties.
The Hon'ble Single Judge, in exercise of his sound discretion, felt that they are proper parties. We also, feel that no prejudice will be caused to the appellants if those persons are added as parties before the Tribunal. On the contrary, better justice is always done if a lis is decided upon a contested hearing.
Consequently, the learned Division Bench dismissed the appeal.22
28. Thus, the learned Division Bench not only distinguished the case of Ramesh Hirachand Kundanmal, but was also of the opinion that since the authorities were not attempting to get the stay order vacated, since no prejudice would be caused to the plaintiff before the learned Tribunal if the impleaders were impleaded as party- respondents, and since the learned Single Judge had exercised his discretion validly, the learned Division Bench had upheld the order passed by the learned Single Judge. It dismissed the appeal. However, the decision of the learned Division Bench is, thus, based on the facts of the case. It did not establish any principle of law. Hence, with respect, the case does not have a binding effect.
29. In catena of cases the Hon'ble Supreme Court has held that decisions are of a Superior Court are not to be treated as provisions of law. Unless a principle of law is declared by the Superior Court, the decision does not have a binding force. For, a decision is based on the particular facts of the case. Since the decision in the case of Sri. Shantesh Gureddi and Another is based on the factual matrix of the 23 case, since it does not lay down any principle of law, with respect and with all due humility, the decision is not binding on this court.
30. As far as the orders of the learned Single Benches are concerned, they tell a different story. In the case of Mr. S. Mohanram (supra) the learned Single Judge did refer to the case of Ramesh Hiralal Kundanmal (supra) but ignored the ratio of the said case. The learned Single Judge merely noted that "In Ramesh Hirachand Kundanmal, (supra), the power of the Court to add parties in exercise of the power under Order 1 rule 10 of CPC has been considered and the scope of the provision has been explained." But the learned Single Judge did not apply the ratio of the said case. Instead, the learned Single Judge upheld the order passed by the learned Tribunal, whereby the learned Tribunal had allowed an application for impleadment of a third party. Since the learned Single Judge has ignored the ratio of the case decided by the Hon'ble Supreme Court, obviously, the said order passed by the learned Single Judge has no binding effect.
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31. Interestingly, both in the case of Ms. Satya Achayya (supra), and in its appeal, in the case of Mr. M. A. Mohammed Amanullah (supra), neither the learned Single Judge, nor the learned Division Bench has noticed the case of Ramesh Hirachand Kundanmal (supra). In fact, both the decisions are based on the factual matrix of the case. Thus, neither of the two decisions have a binding force.
32. In the cases of Sri Chandrappa (supra) and Malleshwaram Residents Welfare Association (R) (supra) this Court has relied upon the case of Ramesh Hirachand Kundanmal (supra). Since both the cases are based on a decision of the Hon'ble Supreme Court, they are equally binding on this Court. In both these cases this Court had upheld the order passed by the learned Tribunal, whereby the learned Tribunal had rejected the application filed for impleadment by a third party. Thus, the present case is squarely covered by these two decisions.
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33. Even otherwise, if the principles annunciated in the case of Ramesh Hiralal Kundanmal (supra) were applied to the present case, the petition would be found wanting in merit. It is true that upon a complaint made by the petitioner, the respondent No. 3 did issue a notice to the respondent No. 1. But the issue is whether in a dispute between the respondent No. 1 and respondent No. 3, the petitioner is a necessary or a proper party or not? The issue is whether the petitioner has a direct and legal interest in the action brought by the respondent No. 1 against respondent No. 3, or not?
34. Admittedly, the respondent No. 1 has challenged the notice issued by respondent No. 3 under Section 321 of the Act. Thus, the cause of action brought by the respondent No. 1 is with regard to the action of respondent No. 3 in issuing the said notice. The dispute is with regard to the legal validity of the said notice. The appeal filed by respondent No.1 is in persona, and not in rem. Thus, it is for the respondent No. 3 to defend the legality of the notice. Hence, in a dispute which is strictly between respondent 26 Nos. 1 and 3, the Tribunal can pass its order in the absence of the petitioner. Therefore, naturally, the petitioner is not a necessary party, i.e., without whom the order cannot be passed.
35. Although the petitioner may have some evidence to give on some of the questions involved in the case, at best it would make the petitioner merely a witness in the case. This would not make the petitioner a necessary party. Moreover, merely because the petitioner may advance some pleas to buttress the case of the respondent No. 3, it again would not make the petitioner a necessary or a proper party to the lis.
36. Furthermore, the order passed by the learned Tribunal, either in favour of the respondent No. 1 or against her, is not binding on the petitioner.
37. Further, the petitioner may claim that the alleged illegal construction being raised by the respondent No. 1 is likely to adversely affect his rights, namely the illegal construction may cause nuisance, or may adversely affect the petitioner's right to air and light. But such breach of his 27 rights gives rise to another and different cause of action in favour of the petitioner. The petitioner cannot be permitted to amalgamate these causes of action in the present appeal filed by the respondent No. 1 against the action of the respondent No. 3.
38. Thus, applying the principles declared in the case of Ramesh Hiralal Kundanmal (supra), the petitioner is neither a necessary party, nor a proper party to the lis. Hence, the learned Tribunal was legally justified in rejecting the application filed by the petitioner under Regulation 40 (a) of the Regulations.
39. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order passed by the learned Tribunal. This petition, being devoid of any merit, is hereby dismissed. No order as to cost.
Sd/-
JUDGE Np/-