A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject- matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. These are factors which must be taken into account while considering whether the presence of a party is necessary before an effective order is made or is proper for a complete and final adjudication of the suit. ...."
. By this writ petition under Article 227 of the Constitution of India, the petitioners who are the original plaintiffs have taken an exception to the judgment and order dated 26th August 2009 passed in Chamber Summons No.329 of 2009 in L.C.Suit No.1483 of 2009.
2. The petitioners filed the aforesaid suit for challenging the notice dated 17 th September 2008 issued by the 1st respondent-Corporation in exercise of powers under section 351 of the Bombay Municipal Corporation Act, 1888. The petitioners are claiming to be the owners of the gala bearing No.1/3 admeasuring 2
976 sq.ft situated at Dhiraj Pen Compound, J.B.Nagar, Andheri (E), Bombay 400059. The said premises (hereinafter referred to as the suit premises) include a loft. The petitioners have claimed that they acquired the suit premises on the basis of Agreement dated 31st August 1992. In paragraph 1(c) of the plaint the petitioners have stated that the said Shed No.1 along with Shed No.2 are situated in the Dhiraj Pen Compound situated on land bearing Plot No.1-A, C.T.S.No.183 of village Mulgaon and C.T.S.No.34 of village Chakala, Taluka Andheri, Mumbai Suburban district. It is contended that the suit premises which forms part of the Shed No.1/3 has been constructed as per the sanctioned plan. The challenge in the suit is to the action initiated by the 1st respondent- Corporation of demolition of alleged mezzanine floor in the suit premises which is allegedly illegal.
3. The 2nd respondents filed Chamber Summons No.329 of 2009 praying that they may be impleaded as party defendants. The 2nd respondent contended in the affidavit in support of the Chamber Summons that the plot No.1-A bearing C.T.S.No.34, C.T.S.No.31/1, C.T.S.NO.34/4 and C.T.S.No.183(c) was purchased by them along with Shed Nos.1 and 2 thereon by a registered conveyance dated 31st October 2002. It is contended that being the landlords and owners the 2 nd respondents are necessary and proper parties as the demolition order subject matter of the challenge in the suit would materially affect the right, title and interest in the property of the applicants. By the impugned order the said Chamber Summons has been made absolute and the petitioners have been 3
directed to make the 2nd respondents the party defendants.
4. The learned counsel appearing for the petitioners placed reliance on a decision of the Apex Court in the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors [1992(2) Supreme Court Cases 524]. He submitted that the suit relates to the action of demolition in respect of the alleged mezzanine floor in possession of the petitioners. He submitted that the 2nd respondents are not directly or indirectly interested in the action of demolition which is the subject matter of the suit. He also placed reliance on a decision of this Court in the case of P.M.A.Hakeem, Chairman, Maharashtra State Road Transport Corporation & Ors Vs. U.P.Co-operative Spinning Mills Federation Limited & Ors [2002(3) ALL MR 389] and submitted that a party seeking to be impleaded as a party to the suit must demonstrate that it has a direct substantial interest in the subject matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit. He submitted that the presence of the 2nd respondents is not at all necessary for answering the issues arising in the present suit. The learned counsel appearing for the petitioner also placed reliance on another decision of this Court in the case of Hebertsons Ltd Vs. Kishore Rajaram Chhabria & Ors [2000 (3) Maharashtra Law Journal 550]. The learned counsel appearing for the petitioner submitted that the Sale Deed on which reliance is placed by the 2nd respondents does not show that the 2nd respondents have any right, title, interest in respect of the suit premises.
4
5. The learned senior counsel appearing for the 2nd respondents placed reliance on a decision of this Court in the case of Adam A. Sorathia & Anr Vs. Municipal Corporation of Greater Bombay & Anr [2002 (4) Bombay Cases Reporter 419]. He submitted that the 2nd respondents being owners of the suit premises are in greater position to throw adequate light on the controversy involved in the suit regarding alleged unauthorised construction of mezzanine floor in the suit premises. He submitted that even in view of the decision of the Apex Court in the case of Aliji Momonji & Co Vs. Lalji Mavji [(1996) 5 Supreme Court Cases 379] the 2nd respondents are necessary and proper parties to the suit. He submitted that the decision of the learned single Judge of this Court in the case of Adam Sorathia (supra) and a decision of the Apex Court in the case of Aliji Momonji (supra) have considered the decision of the Apex Court in the case of Ramesh Kundanmal (supra). He invited attention of the Court to the Sale Deed which shows that the 2nd respondents have purchased the land below the Shed No.1 together with structures thereon.
6. I have given careful consideration to the submissions. The challenge in the suit is to notice/action of demolition in respect of alleged mezzanine floor forming part of suit premises which is a part of Shed No.1 on Plot No.1-A of land bearing C.T.S.No.34 of village Chakala and land bearing C.T.S.No.183 of village Mulgaon, Taluka Andheri, Mumbai Sub-urban district. Perusal of a copy of the Sale Deed dated 31st October 2003 placed on record by the 2nd respondents 5
shows that the 2nd respondents have purchased plot No.1-A along with two sheds bearing Shed No.1 and Shed No.2. Therefore, at this stage prima facie it can be said that the 2nd respondents are the owners of the land below the suit premises and the Shed of which the suit premises forms part.
7. Reliance is placed by the learned counsel appearing for the petitioners on the decision of the Apex Court in the case of Ramesh Kundanmal (supra). This was a case where the appellant before the Apex Court was placed in possession of a service station erected on a land held by the Hindustan Petroleum Corporation Ltd. The appellant was placed in possession of the service station under a dealership agreement. The 1st respondent before the Apex Court the Municipal Corporation of Greater Bombay issued notice under section 351 of the said Act of 1888 for demolition of two chattels on the terrace of the service station on the ground that the same was unauthorisedly constructed. The Hindustan Petroleum Corporation Ltd were not impleaded in the said suit on the ground that they are not necessary parties. The trial Court directed that the Hindustan Petroleum Corporation Ltd be made a party defendant. The said order was confirmed by the High Court and the the plaintiff carried the matter to the Apex Court. In paragraphs 13 and 14 of the decision of the Apex Court held thus: "13. A clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party.
6
14. 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 per- son to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evid- ence 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 solu- tion of some question involved and has thought of relevant arguments to ad- vance. 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 ac- tion 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 in- terest. 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 lit- igation may lead to a result which will affect him legally that is by cur- tailing 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. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England 3, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the ac- tion if those rights could be established, Devlin, J. has stated: "The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'." (emphasis added) In paragraph 15 the Apex Court observed thus:
"15. It has been strenuously contended before us that respondent 2 has no interest in the subject matter of the litigation and the presence of the re- spondent is not required to adjudicate upon the issue involved in the suit or for the purpose of deciding the real matter involved. 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 interested in supporting the Municipal Cor- poration 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 or- der, 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 pro- posed by the Municipal Corporation against the appellant, but for the pur- pose of granting the relief sought for by the appellant by examining the justi- fication of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. If that be so, the presence of the re- spondent cannot be considered as necessary for the purpose of enabling the Court to effectually and completely adjudicate upon and settle all the ques- 7
tions involved in the suit. The appellant is proceeded against by the Municip- al Corporation for the alleged action in violation of the municipal laws. The grievance of the respondent against the appellant, if any, could only be for vi- olation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated nor permissible."
In paragraph 18, the Apex Court observed that the notice of demolition did not relate to the structure erected by the Hindustan Petroleum Corporation Ltd but was in relation to two chattels stated to have been erected by the appellant unauthorisedly. The Apex Court observed that the chattels were movables on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics in which the Hindustan Petroleum Corporation Ltd had no interest.
8. This Court in the decision in the case of P.M.A.Hakeem (supra) in paragraph 10 held thus:
"10. A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject- matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. These are factors which must be taken into account while considering whether the presence of a party is necessary before an effective order is made or is proper for a complete and final adjudication of the suit. ...."
9. In the case of Herbertsons Ltd (supra) this Court reiterated the law laid down by the Apex Court in the case of Ramesh Kundanmal (supra). 8
10. In the case of Adman Sorathia (supra) the plaintiff had filed a suit for challenging notice under section 351 of the said Act of 1888 in respect of alleged unauthorised extension of shop premises. The applicants before this Court were the owners of the chawl in which the shop premises were situated. The applicants before this Court applied for adding themselves as parties under Rule 10(2) of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The said application was rejected by the trial Court and therefore revision application was preferred by the applicants before this Court. This Court observed that the alleged unauthorised construction made by the plaintiff was annexed to the demised premises and it has virtually become part of the premises demised in favour of the plaintiffs and the applicants being landlords had direct and substantial interest in the demise premises. After considering the decision of the Apex Court in the case of Ramesh Kundanmal (supra) in paragraph 17, this Court held thus:
"17. Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining th Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which are movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No.2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was 9
not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely."
11. In the decision of the Apex Court in the case of Aliji Momonji (supra), the appellant before the Apex Court had filed a suit for injunction against Municipal Corporation of Greater Bombay for restraining the Corporation from demolishing a portion of the building. The respondents before the Apex Court applied under Rule 10(2) of Order I of the said Code for impleadment on the ground that they had direct interest in the property subject matter of the notice of demolition. The trial Court allowed the application and the said order was confirmed by the High Court and therefore the plaintiffs appealed before the Apex Court. The Apex Court considered all its earlier decisions including the decision in the case of Ramesh Kundanmal (supra) and in paragraph No.5 proceeded to observe as under:
5. The controversy is no longer res integra. It is settled law by catena of de- cisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the dispute, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the de- molition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licensee would be in jeopardy. It may be that the construction which is sought to be de- molished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would un- doubtedly materially affect the right, title and interest in the property of 10
the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Cor- poration for perpetual injunction restraining the Municipal Corporation from demolition of the building. Under those circumstances, the ques- tion of the commercial interest would not arise. In Ramesh Hirachand Kundanmal case1 this Court had pointed out in para 18 of the judg- ment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject-matter of the litigation and the ad- dition thereof would result in causing serious prejudice to the appel- lant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled. It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions in- volved; 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 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 not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. (P) Ltd. v. Kumkum Mittal2 has pointed out that Respondent 11 who filed a suit for spe- cific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circum- stances, this Court had held that Respondent 11 was neither necessary nor proper party in the leasehold interest involved in the suit. In Union of India v. Distt. Judge3 the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10 CPC for determination of the compensation in respect of the ac- quired land. In Bihar SEB v. State of Bihar4 the same question was also reit- erated and it was held that the Electricity Board was a person interested and also a necessary party. In Anil Kumar Singh v. Shivnath Mishra5 similar question was answered holding that the respondent was a necessary party. (Emphasis added)
In paragraph 6 the Apex Court proceeded to observe as under: "6. In view of the finding that in the event of building being demolished, right, title and interest of the landlord would directly be affected, the landlord would be a proper party, though no relief has been sought for against the landlord. The High Court, therefore, was right 11
in refusing to interfere with the order passed by the trial court impleading the landlords." (Emphasis added)
12. Thus, what has been held by the Apex Court in the decision in the case of Aliji Momonji (supra) and by this Court in the case of Adam A. Sorathia (supra) is that if action of demolition of a building or a part thereof initiated by a Municipal Corporation is challenged, the rights of the landlord of the building will be directly affected and therefore such landlord would be a proper party though no relief has been sought against him. Thus, if a third party is the owner of the property sought to be demolished, such a third party has a direct and substantial interest in as much as in the event of its demolition, rights of such third party would be materially affected.
13. In the present case, there is prima facie material on record in the form of Sale Deed dated 31st October 2002 to show that the 2nd respondents have become owners of Shed No.1 together with land below it. The suit premises is a part of Shed No.1. In fact, annexure II of the aforesaid Sale Deed refers to the names of the petitioners holding an area of 876 sq.ft in Shed No.1. There is a recital in the Sale Deed that the original vendor has represented to the vendors of the 2nd respondents that the original vendors have executed agreements in favour of the occupants mentioned in annexure II and the original vendor has retained the right and is entitled to use available FSI above the sheds and to put in slab above the ceiling of Shed No.1. The conveyance relates to Shed Nos.1 and 2. The averments made in the plaint and notice under section 351 of the said 12
Act of 1888 annexed to the plaint shows that the alleged unauthorised structure forms part of the Shed No.1. Therefore, as held by the Apex Court in the case of Aliji Momonji (supra), the 2nd respondents have a direct and substantial interest in the property subject matter of the suit. Moreover in the present case in paragraph 2(e) of the plaint it is specifically alleged that the Municipal Corporation has issued the notice under challenge in the suit at the instance of one Gurucharan Singh and the second respondents. Therefore, the trial Court has rightly directed that the 2nd respondents be impleaded as proper parties to the suit. Hence, no case for interference in writ jurisdiction is made out. The writ petition is accordingly rejected. It is made clear that no adjudication has been made as regards the legality of the structure subject matter of the suit. (A.S.OKA,J)
Print Page
Bombay High Court
Mr.Ranjitsingh Linga & Anr vs The Municipal Corporation Of ... on 8 February, 2010
Bench: A.S. Oka
. By this writ petition under Article 227 of the Constitution of India, the petitioners who are the original plaintiffs have taken an exception to the judgment and order dated 26th August 2009 passed in Chamber Summons No.329 of 2009 in L.C.Suit No.1483 of 2009.
2. The petitioners filed the aforesaid suit for challenging the notice dated 17 th September 2008 issued by the 1st respondent-Corporation in exercise of powers under section 351 of the Bombay Municipal Corporation Act, 1888. The petitioners are claiming to be the owners of the gala bearing No.1/3 admeasuring 2
976 sq.ft situated at Dhiraj Pen Compound, J.B.Nagar, Andheri (E), Bombay 400059. The said premises (hereinafter referred to as the suit premises) include a loft. The petitioners have claimed that they acquired the suit premises on the basis of Agreement dated 31st August 1992. In paragraph 1(c) of the plaint the petitioners have stated that the said Shed No.1 along with Shed No.2 are situated in the Dhiraj Pen Compound situated on land bearing Plot No.1-A, C.T.S.No.183 of village Mulgaon and C.T.S.No.34 of village Chakala, Taluka Andheri, Mumbai Suburban district. It is contended that the suit premises which forms part of the Shed No.1/3 has been constructed as per the sanctioned plan. The challenge in the suit is to the action initiated by the 1st respondent- Corporation of demolition of alleged mezzanine floor in the suit premises which is allegedly illegal.
3. The 2nd respondents filed Chamber Summons No.329 of 2009 praying that they may be impleaded as party defendants. The 2nd respondent contended in the affidavit in support of the Chamber Summons that the plot No.1-A bearing C.T.S.No.34, C.T.S.No.31/1, C.T.S.NO.34/4 and C.T.S.No.183(c) was purchased by them along with Shed Nos.1 and 2 thereon by a registered conveyance dated 31st October 2002. It is contended that being the landlords and owners the 2 nd respondents are necessary and proper parties as the demolition order subject matter of the challenge in the suit would materially affect the right, title and interest in the property of the applicants. By the impugned order the said Chamber Summons has been made absolute and the petitioners have been 3
directed to make the 2nd respondents the party defendants.
4. The learned counsel appearing for the petitioners placed reliance on a decision of the Apex Court in the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors [1992(2) Supreme Court Cases 524]. He submitted that the suit relates to the action of demolition in respect of the alleged mezzanine floor in possession of the petitioners. He submitted that the 2nd respondents are not directly or indirectly interested in the action of demolition which is the subject matter of the suit. He also placed reliance on a decision of this Court in the case of P.M.A.Hakeem, Chairman, Maharashtra State Road Transport Corporation & Ors Vs. U.P.Co-operative Spinning Mills Federation Limited & Ors [2002(3) ALL MR 389] and submitted that a party seeking to be impleaded as a party to the suit must demonstrate that it has a direct substantial interest in the subject matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit. He submitted that the presence of the 2nd respondents is not at all necessary for answering the issues arising in the present suit. The learned counsel appearing for the petitioner also placed reliance on another decision of this Court in the case of Hebertsons Ltd Vs. Kishore Rajaram Chhabria & Ors [2000 (3) Maharashtra Law Journal 550]. The learned counsel appearing for the petitioner submitted that the Sale Deed on which reliance is placed by the 2nd respondents does not show that the 2nd respondents have any right, title, interest in respect of the suit premises.
4
5. The learned senior counsel appearing for the 2nd respondents placed reliance on a decision of this Court in the case of Adam A. Sorathia & Anr Vs. Municipal Corporation of Greater Bombay & Anr [2002 (4) Bombay Cases Reporter 419]. He submitted that the 2nd respondents being owners of the suit premises are in greater position to throw adequate light on the controversy involved in the suit regarding alleged unauthorised construction of mezzanine floor in the suit premises. He submitted that even in view of the decision of the Apex Court in the case of Aliji Momonji & Co Vs. Lalji Mavji [(1996) 5 Supreme Court Cases 379] the 2nd respondents are necessary and proper parties to the suit. He submitted that the decision of the learned single Judge of this Court in the case of Adam Sorathia (supra) and a decision of the Apex Court in the case of Aliji Momonji (supra) have considered the decision of the Apex Court in the case of Ramesh Kundanmal (supra). He invited attention of the Court to the Sale Deed which shows that the 2nd respondents have purchased the land below the Shed No.1 together with structures thereon.
6. I have given careful consideration to the submissions. The challenge in the suit is to notice/action of demolition in respect of alleged mezzanine floor forming part of suit premises which is a part of Shed No.1 on Plot No.1-A of land bearing C.T.S.No.34 of village Chakala and land bearing C.T.S.No.183 of village Mulgaon, Taluka Andheri, Mumbai Sub-urban district. Perusal of a copy of the Sale Deed dated 31st October 2003 placed on record by the 2nd respondents 5
shows that the 2nd respondents have purchased plot No.1-A along with two sheds bearing Shed No.1 and Shed No.2. Therefore, at this stage prima facie it can be said that the 2nd respondents are the owners of the land below the suit premises and the Shed of which the suit premises forms part.
7. Reliance is placed by the learned counsel appearing for the petitioners on the decision of the Apex Court in the case of Ramesh Kundanmal (supra). This was a case where the appellant before the Apex Court was placed in possession of a service station erected on a land held by the Hindustan Petroleum Corporation Ltd. The appellant was placed in possession of the service station under a dealership agreement. The 1st respondent before the Apex Court the Municipal Corporation of Greater Bombay issued notice under section 351 of the said Act of 1888 for demolition of two chattels on the terrace of the service station on the ground that the same was unauthorisedly constructed. The Hindustan Petroleum Corporation Ltd were not impleaded in the said suit on the ground that they are not necessary parties. The trial Court directed that the Hindustan Petroleum Corporation Ltd be made a party defendant. The said order was confirmed by the High Court and the the plaintiff carried the matter to the Apex Court. In paragraphs 13 and 14 of the decision of the Apex Court held thus: "13. A clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party.
6
14. 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 per- son to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evid- ence 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 solu- tion of some question involved and has thought of relevant arguments to ad- vance. 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 ac- tion 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 in- terest. 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 lit- igation may lead to a result which will affect him legally that is by cur- tailing 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. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England 3, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the ac- tion if those rights could be established, Devlin, J. has stated: "The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'." (emphasis added) In paragraph 15 the Apex Court observed thus:
"15. It has been strenuously contended before us that respondent 2 has no interest in the subject matter of the litigation and the presence of the re- spondent is not required to adjudicate upon the issue involved in the suit or for the purpose of deciding the real matter involved. 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 interested in supporting the Municipal Cor- poration 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 or- der, 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 pro- posed by the Municipal Corporation against the appellant, but for the pur- pose of granting the relief sought for by the appellant by examining the justi- fication of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. If that be so, the presence of the re- spondent cannot be considered as necessary for the purpose of enabling the Court to effectually and completely adjudicate upon and settle all the ques- 7
tions involved in the suit. The appellant is proceeded against by the Municip- al Corporation for the alleged action in violation of the municipal laws. The grievance of the respondent against the appellant, if any, could only be for vi- olation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated nor permissible."
In paragraph 18, the Apex Court observed that the notice of demolition did not relate to the structure erected by the Hindustan Petroleum Corporation Ltd but was in relation to two chattels stated to have been erected by the appellant unauthorisedly. The Apex Court observed that the chattels were movables on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics in which the Hindustan Petroleum Corporation Ltd had no interest.
8. This Court in the decision in the case of P.M.A.Hakeem (supra) in paragraph 10 held thus:
"10. A party seeking to be impleaded as a party to a suit must demonstrate that it has a direct and substantial interest in the subject- matter of the suit and that such interest would be affected directly by the decree that may be passed in the suit or that its presence as a party to the suit must be necessary for answering the issues arising in the suit. These factors must demonstrably exist before the party applying can be allowed to be impleaded as a party to the suit. These are factors which must be taken into account while considering whether the presence of a party is necessary before an effective order is made or is proper for a complete and final adjudication of the suit. ...."
9. In the case of Herbertsons Ltd (supra) this Court reiterated the law laid down by the Apex Court in the case of Ramesh Kundanmal (supra). 8
10. In the case of Adman Sorathia (supra) the plaintiff had filed a suit for challenging notice under section 351 of the said Act of 1888 in respect of alleged unauthorised extension of shop premises. The applicants before this Court were the owners of the chawl in which the shop premises were situated. The applicants before this Court applied for adding themselves as parties under Rule 10(2) of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The said application was rejected by the trial Court and therefore revision application was preferred by the applicants before this Court. This Court observed that the alleged unauthorised construction made by the plaintiff was annexed to the demised premises and it has virtually become part of the premises demised in favour of the plaintiffs and the applicants being landlords had direct and substantial interest in the demise premises. After considering the decision of the Apex Court in the case of Ramesh Kundanmal (supra) in paragraph 17, this Court held thus:
"17. Considering the length and breadth of the plaint allegations, one of the issues before the trial Court would be as to whether the alleged construction sought to be demolished is a sanctioned construction or not. The landlords or the owners of the premises would be the better persons to throw adequate light on the controversy. In these circumstances, in my view, the landlords are the proper parties, though the relief is sought only against the Corporation for perpetual injunction restraining th Corporation from demolishing the structure. In Ramesh H. Kundanmal v. Municipal Corporation of Greater Bombay (supra) the Apex Court had pointed out in paragraph 18 of the judgment that the notice did not relate to the structure but to two chattels/structures which are movable on wheels and plates where servicing and/or repairs were done and used for storing implements of the mechanics. Admittedly, respondent No.2 therein had no interest in those chattels and demolition of the same in pursuance of the notice was 9
not a matter which was to affect the legal rights of the landlord in that case. In the instant case, the landlords would be entitled to place all the facts before the trial Court and, therefore, in my view, the presence of the landlords before the trial Court would be necessary for adjudicating upon the issues effectually and completely."
11. In the decision of the Apex Court in the case of Aliji Momonji (supra), the appellant before the Apex Court had filed a suit for injunction against Municipal Corporation of Greater Bombay for restraining the Corporation from demolishing a portion of the building. The respondents before the Apex Court applied under Rule 10(2) of Order I of the said Code for impleadment on the ground that they had direct interest in the property subject matter of the notice of demolition. The trial Court allowed the application and the said order was confirmed by the High Court and therefore the plaintiffs appealed before the Apex Court. The Apex Court considered all its earlier decisions including the decision in the case of Ramesh Kundanmal (supra) and in paragraph No.5 proceeded to observe as under:
5. The controversy is no longer res integra. It is settled law by catena of de- cisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the dispute, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the de- molition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licensee would be in jeopardy. It may be that the construction which is sought to be de- molished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would un- doubtedly materially affect the right, title and interest in the property of 10
the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Cor- poration for perpetual injunction restraining the Municipal Corporation from demolition of the building. Under those circumstances, the ques- tion of the commercial interest would not arise. In Ramesh Hirachand Kundanmal case1 this Court had pointed out in para 18 of the judg- ment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject-matter of the litigation and the ad- dition thereof would result in causing serious prejudice to the appel- lant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled. It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions in- volved; 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 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 not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. (P) Ltd. v. Kumkum Mittal2 has pointed out that Respondent 11 who filed a suit for spe- cific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circum- stances, this Court had held that Respondent 11 was neither necessary nor proper party in the leasehold interest involved in the suit. In Union of India v. Distt. Judge3 the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10 CPC for determination of the compensation in respect of the ac- quired land. In Bihar SEB v. State of Bihar4 the same question was also reit- erated and it was held that the Electricity Board was a person interested and also a necessary party. In Anil Kumar Singh v. Shivnath Mishra5 similar question was answered holding that the respondent was a necessary party. (Emphasis added)
In paragraph 6 the Apex Court proceeded to observe as under: "6. In view of the finding that in the event of building being demolished, right, title and interest of the landlord would directly be affected, the landlord would be a proper party, though no relief has been sought for against the landlord. The High Court, therefore, was right 11
in refusing to interfere with the order passed by the trial court impleading the landlords." (Emphasis added)
12. Thus, what has been held by the Apex Court in the decision in the case of Aliji Momonji (supra) and by this Court in the case of Adam A. Sorathia (supra) is that if action of demolition of a building or a part thereof initiated by a Municipal Corporation is challenged, the rights of the landlord of the building will be directly affected and therefore such landlord would be a proper party though no relief has been sought against him. Thus, if a third party is the owner of the property sought to be demolished, such a third party has a direct and substantial interest in as much as in the event of its demolition, rights of such third party would be materially affected.
13. In the present case, there is prima facie material on record in the form of Sale Deed dated 31st October 2002 to show that the 2nd respondents have become owners of Shed No.1 together with land below it. The suit premises is a part of Shed No.1. In fact, annexure II of the aforesaid Sale Deed refers to the names of the petitioners holding an area of 876 sq.ft in Shed No.1. There is a recital in the Sale Deed that the original vendor has represented to the vendors of the 2nd respondents that the original vendors have executed agreements in favour of the occupants mentioned in annexure II and the original vendor has retained the right and is entitled to use available FSI above the sheds and to put in slab above the ceiling of Shed No.1. The conveyance relates to Shed Nos.1 and 2. The averments made in the plaint and notice under section 351 of the said 12
Act of 1888 annexed to the plaint shows that the alleged unauthorised structure forms part of the Shed No.1. Therefore, as held by the Apex Court in the case of Aliji Momonji (supra), the 2nd respondents have a direct and substantial interest in the property subject matter of the suit. Moreover in the present case in paragraph 2(e) of the plaint it is specifically alleged that the Municipal Corporation has issued the notice under challenge in the suit at the instance of one Gurucharan Singh and the second respondents. Therefore, the trial Court has rightly directed that the 2nd respondents be impleaded as proper parties to the suit. Hence, no case for interference in writ jurisdiction is made out. The writ petition is accordingly rejected. It is made clear that no adjudication has been made as regards the legality of the structure subject matter of the suit. (A.S.OKA,J)
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