Punjab-Haryana High Court
Municipal Corporation vs Preet Builders Pvt. Ltd. And Ors. on 10 February, 1998
Equivalent citations: (1998)120PLR352, 1999 A I H C 1099, (1999) 1 LANDLR 386, (1998) 120 PUN LR 352, (1998) 2 RECCIVR 196
JUDGMENT Sat Pal, J.
1. This petition has been directed against the order dated 13.1.1997 passed by the Addl. District Judge, Ludhiana. By this order, the learned Additional District Judge has held that Shri D.K. Malhotra, Advocate had no authority to present the appeal on behalf of the petitioner-Corporation and further the appeal in the absence of defendants Nos. 2 and 3 or at least defendant No. 3, is not maintainable as he is necessary party. On the said both counts, the appeal filed by the petitioner-Corporation was dismissed by the learned Additional District Judge.
2. Briefly stated, the facts of the case are that respondent Preet Builders Pvt. Ltd. (hereinafter referred to as the Builder) filed a suit against the defendant/petitioner Corporation for permanent injunction restraining the defendants from interfering in any manner with the construction being raised by the Builder on the suit property. Along with the plaint, the Builder filed an application under Order 39, Rules 1 and 2 read with Section 151, CPC for temporary injunction. The learned trial court vide order dated 4th May, 1996, allowed the application of the Builder and restrained the defendant-Corporation from interfering with the construction being raised by the Builder on the suit property till the decision of the suit. It may be relevant to note here that the plaintiff Builder had impleaded three defendants, namely, (1) The Municipal Corporation Ludhiana; (2) The Commissioner, Municipal Corporation, Ludhiana; and (3) The Municipal Town Planner, Municipal Corporation, Ludhiana. It may also be noted that one joint written statement on behalf of the said three defendants was filed before the learned trial Court.
3. Aggrieved by the order dated 4th May, 1996, passed by the learned trial Court, Municipal Corporation through its Commissioner filed an appeal before the learned Additional District Judge, Ludhiana.
4. The appeals on behalf of the defendants Nos. 2 and 3, namely, the Commissioner, Municipal Corporation, Ludhiana and the Municipal Town Planner, Municipal Corporation, Ludhiana, were not filed. The learned Additional District Judge vide impugned order dated 13th January, 1997, dismissed the appeal of the Municipal Corporation on two grounds, viz. that Shri D.K. Malhotra, Advocate, who had presented the appeal had no authority to file the appeal; and the appeal in the absence of defendants Nos. 2 and 3, or at least defendant No. 3 (Municipal Town Planner, Municipal Corporation, Ludhiana) was not maintainable. Since the appeal has been dismissed on said two grounds, the learned Additional District Judge did not go into the merits of the appeal.
5. Mr. Kumar, learned counsel appearing on behalf of the Municipal Corporation produced in the Court certified copy of the report of APP dated 15th May, 1996 which was on record before the learned Additional District Judge when the impugned order was passed. The learned counsel submitted that it clearly shows that the proposal to file the appeal through Shri D.K. Malhotra, Standing Counsel for the Municipal Corporation was duly approved by the Commissioner, Municipal Corporation on 5th May, 1996. The learned counsel further submitted that defendants Nos. 2 and 3 were only functionaries of defendant No. 1 Corporation and as such, no separate appeal on their behalf was required to be filed nor defendants Nos. 2 and 3 were proper and necessary parties for adjudication of the case. In support of his submission, the learned counsel placed reliance on a recent judgment of the Supreme Court in United Bank of India v. Naresh Kumar and Ors., A.I.R. 1997 S.C. 3.
6. Mr. Vinay Mittal, learned senior counsel appearing on behalf of the respondent-Builder fairly conceded that the defendants Nos. 2 and 3 being the functionaries of the Municipal Corporation (defendant No. 1) were not proper and necessary parties for the adjudication of the appeal. He, however, submitted that the finding of the learned lower appellate court that Shri D.K. Malhotra, Advocate, was not authorised to file appeal was correct.
7. Mr. Lalit Mohan Suri, learned senior counsel appearing on behalf of the newly added respondent, namely, Khalsa Nirbhai Transport Company Pvt. Ltd., submits that the said respondent does not press the application filed on its behalf under Order 1 Rule 10, CPC for being impleaded as respondent, and accordingly the name of the said respondent be deleted from the array of the parties. In view of the statement of the learned counsel, it is ordered that the name of Khalsa Nirbhai Transport Company Pvt. Ltd. be deleted from the array of the respondents.
8. After hearing the learned counsel for the parties and having perused the impugned order, I am of the opinion that the said impugned order dated 13th January, 1997 passed by the learned Additional District Judge, Ludhiana cannot be sustained. In para 9 of the impugned order, it has been observed that there is nothing on the record to show that there is any appointment made by the Commissioner in favour of Shri D.K. Malhotra for filing the appeal. The said finding is, however, contrary to the documents on record. From the certified copy of the report of APP dated 15th May, 1996, which has been produced in the Court today, I find that the proposal to file appeal through Shri D.K. Malhotra, Standing Counsel for the Municipal Corporation, was duly approved by the Commissioner, Municipal Corporation, Ludhiana. In view of these facts, the finding of the learned Additional District Judge that Shri D.K. Malhotra had no authority to present appeal is perverse. Even the other finding given by the learned Additional District Judge that the appeal is not maintainable in the absence of defendant No. 3 is not legally sustainable. As stated hereinabove, defendant No. 1 is the Municipal Corporation through its Commissioner and defendant No. 2 is the Commissioner, Municipal Corporation and defendant No. 3 is the Municipal Town Planner of the Corporation. All these defendants had filed a joint written statement. From these facts, it is clear that defendants Nos. 2 and 3 are the functionaries of the defendant No. 1-Corporation and as such the said defendants are not necessary parties for the adjudication of the appeal filed by the defendant-Corporation. Even under Order XLI Rule 20 the learned Additional District Judge could have called upon the appellant-Corporation to implead the defendant No. 3 as respondent in the case if it was considered that the said defendant was necessary party in the appeal. In this connection, reference may be made to the judgment of the Supreme Court in the case of United Bank of India (supra). In this case, the apex Court observed as under:
"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the court, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible, substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
9. For the reasons recorded hereinabove, the petition is allowed and the impugned order dated 13th January, 1997 passed by the learned Additional District Judge is set aside and the learned Additional District Judge is directed to decide the appeal filed by the Corporation on merits after affording opportunity of hearing to the parties. Keeping in the view the facts and circumstances of the case, I direct the learned Additional District Judge to dispose of the appeal expeditiously preferably within two months from the date of receipt of the copy of this order. The parties are directed to appear before the learned Additional District Judge, Ludhiana, on 23rd February, 1998. The parties, are, however, left to bear their own costs.
With this order, the petition stands disposed of.