Andhra HC (Pre-Telangana)
Neelam Ajit vs V. Suresh Reddy And Anr. on 21 July, 2005
Equivalent citations: 2005(5)ALT471
Author: K.C. Bhanu
Bench: K.C. Bhanu
ORDER K.C. Bhanu, J.
1. Challenging the order, dated 1-10-2004, passed in I.A.No. 831 of 2004 in O.S.No. 5696 of 2003 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, the present CRP is filed.
2. The first respondent herein filed the main suit against the second respondent-Municipal Corporation for perpetual injunction and not to demolish the building in question. An interlocutory application was filed for grant of temporary injunction and the same was allowed by the trial Court. While the matter stood thus, the petitioner herein, who is a third party i.e. neighbour of the petition schedule building, filed the present I.A. to implead him as 2nd defendant under Order I Rule 10 CPC alleging that the first respondent herein is constructing the building deviating the sanctioned plan and that the second respondent failed to take any action for the said unauthorized constructions and that easementary rights of his building have been adversely affected due to illegal structures. The trial Court dismissed the said I.A. on the ground that the second respondent Corporation is a mighty institution and a statutory body, which is having learned Standing Counsel to represent the Corporation and put forth the real facts before the Court, and that there would not be any chances for collusion of MCH with the first respondent/plaintiff and therefore, the petitioner is not entitled to any relief as claimed in the present petition. Aggrieved by the same, the petitioner filed the present CRP.
3. Learned Counsel appearing for the petitioner vehemently contended that since the first respondent herein was making constructions deviating the, sanctioned plan, the petitioner filed W.P.No. 23802 of 2003, wherein, a direction was given to the officials of the Municipal Corporation of Hyderabad, to inspect the petition schedule property and to prepare a report of the deviations made by respondents 3 to 5 and 7 while making constructions, after giving a notice to the Jubilee Hills Co-operate House Building Society and also the present petitioner. But, the second respondent-Municipal Corporation is acting in collusion with the first respondent/plaintiff and did not give any report after conducting inspection and therefore, the petitioner is a proper party, if not a necessary party. Hence, he prays to set aside the impugned order.
4. On the other hand, the learned Standing Counsel for the second respondent contended that since the petitioner is claiming easementary rights, it is not proper for him to claim easementary rights in the case filed by the plaintiff and it is open for the petitioner to file separate suit against the plaintiff for infringement of his easementary rights and that the trial Court rightly dismissed the I.A. and therefore, there are no grounds to interfere with the same.
5. The factual matrix is that when the first respondent herein is alleged to have deviated the sanctioned plan, the petitioner filed W.P.No. 23802 of 2003 before this Court to declare the constructions made by the first respondent/plaintiff as illegal. While disposing of the said writ petition, this Court directed the trial Court to dispose of the suit after consolidating the same with two other connected suits subject to the plaintiff in the suit and two other suits to file explanation to the notices issued under Section 452 as well as Section 636 of the Hyderabad Municipal Corporations Act treating the same as show cause notice within a period of three weeks from that date. This Court further directed that on making such explanation, the Assistant City Planner, Circle-V, Municipal Corporation, with due notice to the officials of the Jubilee Hills Co-operative House Building Society and also to the petitioner, should conduct inspection and prepare a report of deviations made by respondents 3 to 5 and 7 while making constructions and submit a copy of the said report to the Civil Court.
6. The grievance of the petitioner is that the Municipal Corporation even did not give any notice to him at the time of conducting inspection but (sic. nor) filed a report before the trial Court. So, according to the learned Counsel for the petitioner, it is evident that the Municipal Corporation was hand in glove with the first respondent herein and therefore, he may be brought on record. For the said purpose, the learned Counsel placed strong reliance on an unreported Division Bench judgment of this Court in CRP.No. 4600 of 1982 dated 25-2-1983 between Bhagwandas and Ors. v. Harish Chetwal and Ors., wherein, it was held as follows:
"Now, we come to the principal question as to whether the petitioners are entitled to be impleaded as 'proper parties' to the suit or not? We proceed to answer, without however deciding the case on merits as to whether the demolition could be ordered or not, as it would be positively the province of the court wherein the suit stands filed. It is the order of demolition that is now challenged by the plaintiff-first respondent in the suit. The Court on the basis of the material let in by way of evidence on behalf of the parties and also in the light of the statutory provisions may or may not accede to the case for demolition. Much depends upon the material and circumstances that would influence the mind of the court as to whether the deviation is trivial in nature or whether it is serious and likely to affect adversely the interests of the public including the neighbours. Therefore, it would be reasonable for the petitioners to apprehend that the Corporation may not canvass the position the same way in which the petitioners would be eager to do so. The ground for such suspicion has been already made clear by averring that the staff of the Corporation has been hand in glove with the plaintiff as otherwise the deviation in the construction could have been detected long prior to the date on which the petitioners brought it to the notice of the Corporation.
If this be our judgment, to which, we have arrived without any hesitation, the issue involved could easily be resolved. The issue involved in the suit laid for permanent injunction against the Corporation, is to restrain the Corporation from implementing the notice of demolition. It is precisely the same issue in which the petitioners are equally interested to canvass against, inasmuch as if the injunction is perpetuated, it would jeopardize the interests of the petitioners once and for all, as it would affect their right to light, air and sanitation unconnected with and independent of any easementary rights; in which case, it is quite apparent that the petitioners must be held at any rate to be 'proper' parties, if not 'necessary' parties in order to effectually adjudicate upon the question involved in the suit."
7. After considering all the decisions and in such circumstances, the Division Bench of this Court held that the petitioners therein though not be the necessary parties, they are proper parties in order to effectually adjudicate the questions involved in the suit. That is also a case where the suit is filed by the first respondent therein against the Municipal Corporation challenging the notice issued by the Corporation as illegal and void and consequential prayer for permanent injunction restraining the Corporation from interfering with the possession of the plaintiff therein.
8. In view of the above Division Bench judgment of this Court, though the present petitioner is not a necessary party, he is a proper party.
9. The main ground, on which, the trial Court dismissed the I.A. is that the petitioner cannot claim any relief in the present application and further, the petitioner can as well file a separate suit against the first plaintiff, if there is any infringement of easementary rights. The other ground on which the trial Court dismissed the I.A. is that the Municipal Corporation is a mighty statutory body, which can represent the cases through its standing counsel. Since the petitioner apprehends that the Municipal Corporation officials are colluding with the first respondent herein, he can be brought on record, so that, the deviations in the constructions could be effectively pointed out. As rightly contended by the learned Counsel for the petitioner and also in view of the authoritative pronouncement of the Division Bench of this Court, the petitioner can be brought on record as a second defendant. Therefore, the impugned order is liable to be set aside.
10. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned order and the LA. filed by the petitioner stands allowed.
11. It is brought to the notice of this Court that earlier, a direction was given by this Court to dispose of the suit itself by the end of March, 2005. Later, the same was extended till December, 2005. The trial Court has to follow the directions, if any, given by this Court, scrupulously. No order as to costs.