Punjab-Haryana High Court
Smt. Shayama Jain vs Smt. Savitri Devi And Ors. on 24 April, 2002
JUDGMENT M.M. Kumar, J.
1. This is a revision petition directed against the order dated 24.8.2000 passed by the Civil Judge (Junior Division), Narnaul dismissing the application filed by the applicant-petitioner under Order 1, Rule 10 of the Code of Civil Procedure (for brevity, 'the Code') claiming that she was necessary and proper party and was, thus, liable to be impleaded.
2. Facts necessary for deciding the controversy raised in this revision petition are that plaintiff-respondent No. 1 has filed the suit challenging the notice issued by the Municipal Council, Narnaul under Section 181 of the Haryana Municipal Act, 1973 (for brevity, 'the Act') wherein she has been asked to remove the illegal and unauthorised encroachment made by her by construction of staircase in the public street within a period of 7 days. In that suit only Municipal Council, Narnaul has been joined as party defendant. Alongwith the suit plaintiff-respondent No. 1 has filed an application under Order 39, Rules 1 and 2 of the Code praying for interim injunction. The Civil Judge has granted the interim stay of demolition of staircase on the passage.
3. The applicant-petitioner in her application filed under Order 1, Rule 10 of the Code asserted that she has purchased the land measuring 1475 square yards in the year 1989 and she has constructed her house on the land measuring 1275 square yards and the remaining area of 200 square yards was left for passage. It was further averred that she is presently residing in the house alongwith her family. The plaintiff-respondent No. 1, who is her neighbour, has constructed the staircase on two feet area of the passage of the public street which leads to the house of the applicant-petitioner. The construction of staircase in the street raised by the plaintiff-respondent No. 1 is in excess and cause obstruction to approach to the house of the applicant-petitioner. Aggrieved by the raising of illegal construction of staircase, the applicant-petitioner filed a complaint dated 27.2.2000 to the Deputy Commissioner, Narnaul requesting him for removal of the illegal ad unauthorised construction of staircase raised by plaintiff-respondent No. 1. The Deputy Commissioner, Narnaul referred the complaint of the applicant-petitioner to the Municipal Council, Narnaul for initiation of necessary action. It is on the basis of the complaint sent by the applicant-petitioner that the Municipal Council, Narnaul issued a notice dated 28.2.2000 under Section 181 of the Act to the plaintiff-respondent No. 1 directing her to remove the illegal and unauthorised encroachment. The application filed by the applicant-petitioner under Order 1, Rule 10 of the Code has been dismissed by the Civil Judge by recording the following order;-
"After hearing both the counsel, I am of the considered view that this is simply a suit for permanent injunction filed by the plaintiff restraining the defendant Municipal Committee from demolishing the stair case in question, in view of the notice No. 398 dated 28.2.2000. The real material question in this case is that whether the defendant Municipal Committee has any right to demolish the stair case in question or not. The question of ownership of the street is not in issue and it is not matter in controversy. The applicant if has any independent cause of action then she can file a fresh suit for the declaration. The present suit is only to protect the stair case in question from demolition and there is no question of ownership of this street involved in this suit. If the applicant is the owner of this street then she can claim this ownership in a separate suit. She is not a necessary and proper party to determine whether the defendant has right to demolish this stair case or not. Under order 1 Rule 10 CPC only such persons can be made a party in whose absence the matter cannot be adjudicated properly. The presence of the applicant in this case will not facilitate to reach at an adjudication of the matter. She is not a proper and necessary party in the absence of which the matter cannot be decided. In view of my above discussion the application stands dismissed, now to come upon 2.9.2000 for consideration on injunction application."
4. Shri S.K. Mittal, learned counsel for the applicant-petitioner has argued that the order passed by the Civil Judge suffers from material irregularity because it would lead to multiplicity of litigation as the applicant-petitioner has been advised to file a separate suit. He has further argued that plaintiff-respondent No. 1 is no doubt dominus litus but there is no strict rule that persons who are interested in the dispute raised before the Court cannot be allowed to become party. In support of his submission, he has placed reliance on two judgments of this Court rendered in the cases of Nand Lal Nandwani and Anr. v. Bhagwan Dass and Anr. 1986 P.L.J. 223 and Gram Panchayat Garth v. Dharambir (1988-1)118 P.L.R. 809. He has further argued that in any case the applicant-petitioner is a proper party as her presence before the Court would help the Court to adjudicate the matter completely and effectively. He has further submitted that the Municipal Council is not taking interest in the suit which would further result in causing prejudice to the interest of the applicant-petitioner.
5. On the other hand, Shri M.L. Saini, learned counsel for plaintiff-respondent No. 1 in support of the impugned order has submitted that the plaintiff-respondent No.1 has filed simple suit for injunction and the applicant-petitioner is not likely to be adversely affected by the findings to be recorded by adjudication of the suit. He has further pointed out the there cannot be any collusion between the plaintiff-respondent No. 1 and the defendant-respondent i.e. Municipal Council, Narnaul. The learned counsel has placed reliance on a judgment of Delhi High Court in the case of Hansalaya Properties v. Dalmia Cement (Bharat) Ltd.? (1993-3)105 P.L.R. D.5 to argue that in cases of notices of removal of illegal construction, even the original owners are not considered necessary or proper party as the question of ownership would not be involved.
6. Having heard learned counsel for the parties at considerably length and perusing the record with their assistance. I am of the considered opinion that this revision petition deserves to succeed and the impugned order dated 24.8.200 passed by the Civil Judge is liable to be set aside. The averments made in the application clearly establish the interest of the applicant-petitioner inasmuch as it has been averred that she has purchased the land and constructed the house by leaving the area of 200 square yards for the passage. She has further asserted that when the plaintiff-respondent No. 1 constructed the staircase illegally obstructing the free access to the house of the applicant-petitioner, she has to file a complaint on 27.2.2000 to the Deputy Commissioner, Narnaul and the notice dated 28.2.2000 issued to plaintiff-respondent No. 1 is on the basis of her complaint. Therefore, the applicant-petitioner is a necessary party and it has to be held that the order passed by the Civil Judge suffers from material irregularity and illegality. Both the judgments relied upon by the learned counsel substantially support his submission because in Nand Lal Nandwani's case (supra), this Court has taken the view that in a suit for permanent injunction restraining the Municipal Committee from demolishing the plaintiffs wall on the disputed land, the presence of the person who had his house situated opposite just across the street was considered necessary and he was held to be a person interested within the meaning of order 1, Rule 10 of the Code. Therefore, the revision petition deserves to be allowed and the impugned order dated 24.8.2000 is liable to be set aside.
7. The judgment of Delhi High Court in the case of Hansalaya Properties (supra) relied upon by the learned counsel for plaintiff-respondent No. 1 does not apply to the facts of the present case because in that case the applicant who filed the application under order 1, Rule 10 of the Code had already filed a suit which was pending. One of the object allowing an applicant to become party is also to avoid multiplicity of litigation. But in a case where already a suit has been filed allowing an application under Order 1, Rule 10 of the Code to become part and to interfere in someone else's suit would be unwarranted. Therefore, the cited decision does not help the plaintiff-respondent No. 1.
8. For the reasons recorded above, this revision petition is allowed. Order dated 24.8.2000 is set aside, the application of the applicant-petitioner filed under Order 1, Rule 10 of the Code is allowed and she is permitted to join as defendant. The trial Court is directed to allow her to file the written statement. However,nothing said herein should be taken as an expression of opinion on merits of the matter.