Madras High Court
R. Ramaiya vs S. Swaminathan on 25 September, 1989
Equivalent citations: (1992)2MLJ518
ORDER K.M. Natarajan, J.
1. This revision is directed by the respondent-plaintiff against the order in I.A. No. 1046 of 1989 allowing the petition for impleading the Planning Authority, Pondicherry and the Commissioner, Oulgaret Commune Panchayat as party-defendants.
2. The facts which are necessary for the disposal of this revision can be briefly stated as follows:
The revision petitioner filed the suit for a declaration that he is the absolute owner of the suit B Schedule property, for recovery of possession by evicting the respondent from the encroached B Schedule property and for permanent injunction restraining the respondent from interfering with the peaceful enjoyment/and possession of the revision petitioner. The said suit was contested by the respondent herein and in his written statement, it is stated that the Planning Authority, Pondicherry, and the Commissioner Oulgaret Commune Panchayat are necessary parties, as even in the plaint it is stated that there is a Government Irrigation Canal separating the property of the revision petitioner and the respondent and that the respondent has encroached the whole length of the canal and that therefore the suit is bad for non-joinder of necessary and proper parties. It is further stated in the written statement that the revision petitioner by his illegal construction has blocked the entire government canal and the extension of the road used by the public, and only when it was brought to the notice of the proposed parties by the respondent, the present suit with a view to cover up his manipulations and misdeeds and to stall the action by the Government authorities. In substance, it was complained to the authorities that the revision petitioner has grossly violated all the norms fixed by the Planning Authority, Pondicherry and the Commissioner Oulgaret Commune Panchayat in putting up a residential building.
3. Thereupon the respondent herein/defendant filed the application I.A. No. 1046 of 1989 under Order 1, Rule 10(2) read with Section 151, C.P.C. for impleading the Planning Authority, Pondicherry and the Commissioner, Oulgaret Commune Panchayat as party-defendants. It is alleged in the affidavit filed in support of the application that the revision petitioner has put up his house construction on a piece of land over which he has absolutely no right or title disregarding the provisions of the Pondicherry Town Planning Act and the commune Panchayat Act and also the rules and regulations made therein. Further the revision petitioner has constructed his house encroaching upon the Government irrigation canal and the portion allotted for public road. The Oulgaret Commune Panchayat has already surveyed the entire site and issued to the revision petitioner a notice of encroachment. It is further stated by the respondent that he had constructed his residential house on a lay-out duly approved by the Planning Authority, Pondicherry. The property described is the schedule to the plaint does not correlate with the property described in the sale deed filed by the revision petitioner or with the property available at the site. The Advocate Commissioner's report also reveals that the revision-petitioner has encroached upon the Government property and has put up the construction. By such illegal construction the revision-petitioner has caused great loss to the respondent to the Government and to the other residents of the locality. It is lastly submitted that to bring to light the actual and real facts involved and for just decision of the case, those two parties are very necessary and essential. Hence the petition.
4. The said application was resisted by the revision-petitioner and in his counter it is stated that the respondent/defendant can only plead nonjoinder of necessary or proper parties under Order 1, Rule 10(2), C.P.C. but he cannot compel the plaintiff to implead them as parties. Further there is no averment or allegation made in the plaint against the proposed parties and no relief is sought against them. They are neither necessary nor proper parties to the suit. Further to implead them as parties, there should be a notice under Section 30, C.P.C. and under the Municipality Act and Commune Panchayat Act. The revision-petitioner also denied having encroached upon the Government property and also denied having done several manipulations to overcome the regulation and restriction of the Pondicherry Planning Authority. According to the revision-petitioner, the respondent is the Deputy Director in the statistics department and that he had raised a compound wall at his south west side beyond the area purchased by him. Lastly he has stated that he is a poor teacher and that he has been harassed by the respondent. Hence, as prayed for dismissal of the petition.
5. Though both the proposed parties were served with notice, the Pondicherry Planning Authority alone filed a counter, wherein it is stated that they have issued a building permit to the revision-petitioner in respect of the plot No. 45, in R.S. No. 169/4. But, he had made deviations by constructing the building and the same was noted by the staff of the Authority. A deviation notice dated 14.4.1988 was issued to the revision petitioner directing him to stop all the work immediately. The revision-petitioner continued the work inspite of the receipt of the deviation notice and thereafter, a reminder dated 29.7.1989 was sent to him. It is a fact that the revision-petitioner encroached upon the public canal and the road which belong to the Oulgaret Commune Panchayat and in this regard a communication has also been sent to them to take suitable action against the revision petitioners. The Pondicherry Planning Authority is taking necessary action against the revision-petitioner as far as the deviations committed by him are concerned. Lastly, it was stated that Oulgaret Commune Panchayat is only the rightful person in respect of the encroached portion but not the Planning Authority, Pondicherry. Since in this case no question or issue is involved which is to be adjudicated in the presence of the proposed party, the proposed party is not a necessary party.
6. The court below for the reasons stated in the order allowed the petition. Hence the aggrieved plaintiff (revision-petitioner), has preferred this revision. The learned Counsel for the revision-petitioner, Mr. G. Masilamani, mainly contended that since the revision-petitioner (plaintiff), is not willing to implead the proposed parties and since one of the two proposed parties has filed a counter contending that he is not a necessary party, the court below should not have allowed the application and the reasons given by the lower court are not sustainable. It is further submitted by the learned Counsel that the suit is between the plaintiff and the defendant and the burden is on the plaintiff to prove title and his right to recover possession from the defendant who is in possession and if he fails to do so, the suit will be dismissed. The plaintiff is a dominus litas and he cannot be compelled to implead a third party against his wishes. In this connection, the learned Counsel drew the attention of this Court to the decision in Vaithilinga v. Sadasiva 49 M.L.J. 414: 91 I.C. 612: A.I.R. 1926 Mad. 35 wherein it was held:
Where a third person who applies to be added as a party is only a permissible party, then on principle, his addition as party cannot generally be ordered when it is opposed by the person to fight whom he is so brought on the record. The very basic principle of judgments inter partes is that the judgments are not judgments in rem, but declaratory and operative only as between them. The plaintiff being generally dominus litus there is no principle of justice upon which he can be compelled to fight against some other litigant not for his own choice unless such a process is required by the positive rule of law.
That was a case where the Secretary of State for India in Council was sought to be impleaded as a party to obtain declaration that the Madras Hindu Religious Endowments Act 1 of 1925 was invalid and ultra vires and on the basis of such declaration the plaintiff has asked for a relief by way of an injunction which is merely a relief consequent on the declaration it was observed in the above judgment:
The only suggestion on which such a joinder can be supported is that it is necessary that the declaration that the Act is ultra vires should be obtained in the presence of the Secretary of State. But the Secretary of State so far as the Civil P.C., is concerned represents merely the Government or the Sovereign and can under the present system be regarded if at all only as part of the legislative machinery.
It was observed by the learned single Judge:
Having regard to the number and variety of legislative bodies and authorities in the country at the present day, paramount, imperial, local, delegated, subordinate, etc. I feel that questions of ultra vires are certain to be raised in the courts in increasingly large number of cases and I refuse to contemplate with equanimity the prospect of the Secretary of State for Indian being-required by every defendant to be made a party in every one of them.
Consequently, in that case the application was dismissed. Even in the said decision, the learned Judge observed at page 838:
The phrase to enable the Court effectively and completely to adjudicate upon and settle would seem really to indicate that the addition of the party should be ordered only if in the opinion of the court in the absence of the party it cannot effectually and completely adjudicate and settle all the questions." In the instant case, the learned District Munsif came to the conclusion that the proposed parties are the necessary parties in order to enable the court effectively and completely adjudicate and settle the questions involved in the suit. Hence, that decision is not helpful to the case of the revision petitioner. Next, the learned Counsel relied on the decision reported in Banarsi Dass v. Panna Lal . In the above quoted case, a single Judge of the said High Court has observed: 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 also observed:
The word 'may' in Sub-rule (2) imports a discretion. In exercising that discretion, the courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant in his suit. Only in exceptional cases, where the court finds that the 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. Razia Begum v. Anwar Begum A.I.R. 1958 A.P. 195, ref.
The said decision also is not helpful to the case of the revision-petitioner as even in that case it was observed that where the court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, the impleading of defendant can be done without the consent of the plaintiff.
7. On the other hand, it is seen that the lower Court has relied on the decision of the Supreme Court reported in Razia Begum v. Sahebzadi Anwar Begum , wherein the guidelines for impleading parties under Order 1 Rule 10 C.P.C. were laid down. The guidelines were also extracted in the lower Court's order. It is seen from the above judgment that where the subject matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. In a suit relating to property in order that a person may be added as a party he should have direct interest as distinguished from a commercial interest in the subject matter of litigation. It was further observed that the result of a declaratory decree on the question of status, such as in controversy in the instant case affects not only the parties actually before the Court but generations to come and in view of that consideration, the rule of present interest as evolved by case Jaw relating to disputes about property does not apply with full force. The lower court also relied on the decision reported in Kshitish Chandra v. Dewan Sheikh A.I.R. 1976 Gauhati 41, where the learned Judge, applying the principles laid down by the Supreme Court in the above quoted case, allowed the application on the ground that in order to enable the court to effectually and completely adjudicate the points at issue, the proposed party is necessary party. The lower court also relied on the decision Durgabala Nazra and Ors. v. Acharya Prosbodhananda Adahut and Ors. . In addition to those decisions, the learned Counsel for the respondent drew the attention of this Court to the decision in Kisan Uchattar M.V. Samiti v. IIIrd Additional District Judge, Deoria , wherein it was held:
The provisions of Order 1 Rule 10(2) of the Code clearly empower the court to implead any person as party suo motu, 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. In case the plaintiff is permitted as a rule to choose his own opponents and the court does not interfere on the point in that event it may be that a collusive decree is obtained against the real owner or interested person without impleading him as a party and when the decree will become final, then at a very fate stage the person vitally affected or the real owner may come to know about it. This would lead to defeat the interest of justice which should not be permitted in a court of law and to avoid these ugly situations, the Parliament with considerable ingenuity enacted Order 1, Rule 10(2) of the Code which has been couched in a language having very wide sweep.
Reliance was placation the earlier decision of the Supreme Court repeated in Bal Nicketan Nursery School v. Kesari Prasad A.I.R. 1987 S.C. 290, it was observed by the Supreme Court:
The scope and effect of O.I Rule 10 has been considered in number of cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under O.I Rule 10 and promote the cause of justice.
In Munshi Ram v. Narsi Ram , it was held:
The omission to iniptead a defendant was due to a mistake Section 21(1) of the-Act would be attracted and the defendant has to be impleaded under O.I, Rule 10, C PC. to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
In the instant case, the trial court on the facts and circumstances of the case came to the conclusion that the proposed parties are necessary parties in order to enable the said court to effectually and completely adjudicate the issue involved in the said suit. It is seen from the counter filed by one of the proposed party that the revision petitioner herein has encroached upon the public canal and the road which belong to Oulgaret Commune Panchayat and that he has made deviations by constructing the building and a deviation notice was issued to him directing him to stop all the works. It is to be noted {Hat the petitioner has not challenged the said order. For all these reasons, I am of the view that the Impugned order does not suffer from any infirmity or illegality whatsoever for this Court to interfere in revision. Consequently the revision fails and stands dismissed. No costs.