“No doubt, no relief is sought for against
the proposed party in the suit. The object
of Order 1 Rule 10(2) C.P.C. to implead a
third party to the suit is that the dispute
in the suit would be resolved in the
presence of all, in order to avoid
multiplicity of proceedings. There must be
some semblance of right to the proposed
party. If the petitioner violates the
building plan without leaving set backs,
cellar etc., then certainly it would cause
inconvenience to the neighbours. The
proposed party is one of the neighbours.
Therefore, to safeguard his interest, in
view of the fact that he has got some
semblance of right, though no relief is
claimed against him, he would be necessary
and proper party to come on record. That is
why the trial Court rightly impleaded him as
a party to the suit and I.A. and there are
no grounds to interfere with the same. The
revision is devoid of merits and is liable
to be dismissed.”REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10779-10780 OF 2013
(arising out of S.L.P. (Civil) Nos. 13098-13099/2012)
N.ANANTHA REDDY Petitioner(s)
VERSUS
ANSHU KATHURIA & ORS. Respondent(s)
R.M. Lodha, J. :
2. The respondent No. 1 herein filed a suit for
declaration and perpetual injunction against the
Greater Hyderabad Municipal Corporation (respondent No.
2 herein) and the Assistant City Planner (respondent
No. 3 herein). In the suit, the respondent No. 1
(plaintiff) prayed that notice dated 23.12.2009 issued
under Section 452 of the Greater Hyderabad Municipal
Corporation Act, 1955 be declared as illegal, void and
not legally tenable. It was further prayed that the
defendants (respondent Nos. 2 and 3 herein) have no
right to interfere with the construction being put up
by the plaintiff. The plaintiff also prayed for
perpetual injunction restraining the two defendants,
their officers/officials/servants from interfering with
the suit scheduled property and by directing them not
to demolish or cause any damage to the suit schedule
property.
3. The appellant, who is plaintiff's neighbour,
made applications for his impleadment in the suit and
the application for interim relief. The applicant did
not claim any right, title or interest in the suit
schedule property but claimed that there is
infringement of his right of light and air if the
construction by the plaintiff is commenced and
completed and, therefore, he is a proper party in the
matter.
4. The trial court heard the plaintiff and the
proposed party and by order dated 20.07.2010 allowed
the said applications. The trial court, while allowing
the said applications made by the present appellant,
observed as follows :-
“The claim of petitioner is that, though
he is not claiming right over the property
of plaintiff, his grievance is only about
the construction being made by the plaintiff
because it is effecting his right for light
and air. The objection of the plaintiff is
that because he is challenging the notice
issued by the Municipality in respect of the
construction, since the petitioner is not
having any right over the suit property, he
is not necessary party. I have considered
other submissions also made and the
citations relied by the either side. Under
Order 1 Rule 10 a party would become
necessary party or proper party if he is
having only over the subject matter to be
adjudication under the suit and then can be
impleaded. In this case though the third
party petitioner is not claiming any title
over the property. Even if the pleadings of
the plaintiff have to be considered, the
title of the plaintiff over the suit
property is not in dispute. What is in
dispute among the plaintiff and the
defendants already on record is about the
construction being made by the plaintiff.
Because the defendants already on record
have said to have issued notice to the
plaintiff stating that the construction is
illegal. Challenging the said notice the
present suit is filed. The present suit is
filed after withdrawing the previous suit
for injunction filed against Municipality
said to be filed before issuance of the
notice under Section 452 of Municipal Act.
In that case the petitioner had already been
impleaded on his application as he was
expressing the grievance of the infringement
of his right for light and air in view of
the construction of the plaintiff. Having
considered the decisions relied by either
party to my considered opinion, the decision
relied by the third party petitioner is that
similar facts as of the present case on hand
wherein the Court held that though the said
third party is not a necessary party, but he
is proper party in respect of his grievance
to the suit proceedings there in and ordered
his impleading in the suit. The facts in the
decisions relied by the Learned Counsel for
plaintiff are not similar to the facts on
hand. Therefore by following the decisions
relied by Learned Counsel for third party
petitioner in 2005 (6) ALD NOC 223
(Between : Neelam Ajit Vs. S. Suresh Reddy
and another), I hold that the third party
petitioner can be impleaded in the suit and
as well as the application for injunction as
Defendant No. 3 and Respondent No. 3
respectively.”
5. The above order of the trial court was
challenged by the respondent No. 1 (plaintiff) before
the High Court. The High Court, after hearing the
parties, by its order dated 08.06.2011 dismissed the
Civil Revision Petitions filed by the respondent No. 1
herein by observing as follows :
“4. It is to be noted that the vendor of the
plaintiff and the vendor of the first
respondent herein are neighbours, having
purchased common property and dividing the
same into two portions and one portion
comprising an extent of 790 sq. yards was
purchased by the first respondent and the
other portion comprising of 580 sq. yards
was purchased by the vendor of the
plaintiff. It is further stated that both
the parties made constructions in their
respective plots and allegations and counter
allegations were made against one another
alleging deviations from the sanctioned plan
and violation of the building rules.
5. It is not disputed that previously in
the similar circumstances, this Court by
common order dated 25.10.2010 in CRP Nos.
2870 and 3882 of 2010, dismissed the said
revision petitions and confirmed the orders
passed by the trial court, permitting the
first respondent to come on record as
defendant in the said suit OS No. 960 of
2010 and copy of the said order is placed on
record. The issue raised in the present
revision petitions virtually covered by the
said earlier order dated 25.10.2010 in CRP
Nos. 2870 and 3882 of 2010 and adopting the
reasons mentioned therein, the present
revision petitions are also dismissed.”
6. The respondent No. 1 then made applications
for review of the order of the High Court dated
08.06.2011.
7. The High Court by the impugned order recalled
its earlier order dated 08.06.2011 and directed the
trial court to consider the applications for
impleadment afresh.
8. While recalling the order dated 08.06.2011,
the High Court observed thus :
“11. During enquiry of the review
applications, the petitioner filed several
documents including the sale deeds and the
sanctioned plan and also photographs in
support of his contention that while making
the construction he has left the space
towards set backs as required under the
rules and the construction is in accordance
with the sanctioned plan and the question of
petitioner's construction causing
obstruction to the free flow of light and
air to the first respondent's six storied
building does not arise. The said documents
were not filed before the trial Court and
hence, there was no occasion for the trial
Court to refer to the same in the impugned
order. The trial court ordered impleadment
of the first respondent herein mainly on the
ground that in the earlier suit, which was
filed by the plaintiff against the
municipality for mere injunction, the first
respondent was impleaded on his application.
It is stated that the earlier suit was
withdrawn and subsequently, plaintiff filed
the present suit for declaration that the
notice issued under section 452 of the
Municipal Corporation Act is illegal.
Admittedly, no relief is sought in the
present suit against the first respondent.
The question as to whether or not the first
respondent herein would be a proper and
necessary party having regard to the nature
of the relief prayed for in the present suit
is a matter to be considered independently,
irrespective of impleadment of the first
respondent herein in the earlier suit, which
was filed only for injunction. The trial
court has to consider the question as to
whether or not the first respondent is a
proper and necessary party to the present
suit in the light of the documents now
sought to be filed by the petitioner. Order
1 Rule 10 CPC contemplates the impleadment
of proper and necessary party, whose
presence before the Court is necessary to
enable the Court effectually and completely
to adjudicate upon and settle all the
questions involved in the suit. The
question as to whether or not the first
respondent is a proper and necessary party,
who can be impleaded in terms of Order 1
Rule 10 CPC has to be considered keeping in
view the relief prayed for in the present
suit and the dispute that is required to be
settled pertaining to the impugned notice
issued by the Municipal Corporation. The
impugned order passed by the trial court
permitted impleadment of the first
respondent on the premise that he was
previously impleaded in another suit, which
was filed for injunction is therefore held
unsustainable and the same is accordingly
set aside.”
9. A careful look at the impugned order would
show that the High Court had a fresh look at the
question whether the appellant could be impleaded in
the suit filed by the respondent No. 1 and, in the
light of the view which it took, it recalled its
earlier order dated 08.06.2011. The course followed by
the High Court is clearly flawed. The High Court
exceeded its review jurisdiction by reconsidering the
merits of the order dated 08.06.2011. The review
jurisdiction is extremely limited and unless there is
mistake apparent on the face of the record, the
order/judgment does not call for review. The mistake
apparent on record means that the mistake is self
evident, needs no search and stares at its face.
Surely, review jurisdiction is not an appeal in
disguise. The review does not permit rehearing of the
matter on merits.
10. The order passed by the High Court on
08.06.2011, on a careful reading, shows that the High
Court instead of repeating the reasons which it had
given in other revision petitions being CRP Nos. 2870
and 3882 of 2010, while it was fully conscious of the
fact that those civil revisions arose from a different
suit followed its order in CRP Nos. 2870 and 3882 of
2010. The High Court was fully conscious of the
factual and legal position while it was considering the
civil revision petitions filed by the present
respondent No. 1. In the order upon which reliance
was placed by the High Court while dismissing the civil
revision petitions, the High Court had noted thus :-
“No doubt, no relief is sought for against
the proposed party in the suit. The object
of Order 1 Rule 10(2) C.P.C. to implead a
third party to the suit is that the dispute
in the suit would be resolved in the
presence of all, in order to avoid
multiplicity of proceedings. There must be
some semblance of right to the proposed
party. If the petitioner violates the
building plan without leaving set backs,
cellar etc., then certainly it would cause
inconvenience to the neighbours. The
proposed party is one of the neighbours.
Therefore, to safeguard his interest, in
view of the fact that he has got some
semblance of right, though no relief is
claimed against him, he would be necessary
and proper party to come on record. That is
why the trial Court rightly impleaded him as
a party to the suit and I.A. and there are
no grounds to interfere with the same. The
revision is devoid of merits and is liable
to be dismissed.”
11. In our view, the High Court was not at all
justified to review the order dated 08.06.2011.
12. The impugned order dated 13.12.2011 is,
accordingly, set aside. Appeals are allowed as above.
No costs.
..........................J.
( R.M. LODHA )
NEW DELHI; ..........................J.
DECEMBER 2, 2013 ( SHIVA KIRTI SINGH )
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