There can be no quarrel about the principle that the
power under Order 1 Rule 10 of C.P.C. must be exercised by a Civil
Court in a manner as to advance the cause of justice by doing that
which is a must for determination of real controversy involved in
the suit.
The power is not to be used just for the asking by any
party. The party who seeks its impleadment in the suit must satisfy
that
its
presence is necessary
for determination of real
controversy in the suit. The real test for ascertaining of the
presence of the party would lie in answer to the question as to
whether the party has interest in the suit and if the answer is yes,
the presence of party would become necessary. Reason being that
a party having interest in the lis is most likely to be affected
directly and substantially in its rights by a decision in the suit. But,
care has to be taken to ensure that interest of the party is real and
direct, and is not based upon a claim which has no direct relation
with the subject matter or cause of action of the suit or the reliefs
claimed in the suit. If the interest is remote or indirect, the party
would not be a necessary party and thus cannot be joined as party
to the suit.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.52 OF 2014.
Shri. Premanand Gajanan Naik,
Versus .....
Shri Sachit Gajanan Naik,
CORAM : S.B. SHUKRE, J.
Pronounced on :25th March,2014.
Citation;2015(1) MHLJ163 Goa HC
By this petition, the petitioners have challenged the
order passed on 20.12.2013 in Regular Civil Suit No. 40/2013/D
allowing the impleadment of respondent no.1 as defendant no. 2 to
the suit.
2.
It is the case of the petitioners that petitioner no.1 and
respondent no.1 are brothers and co-owners of immovable property
situated at Miranda road, Margao Goa. The petitioners submit that
petitioner no.1 and respondent no.1 obtained a construction licence
in their joint names for
erection of a building on the said
immovable property from the MMC Margoa, respondent no. 2.
They further submit that petitioner no.1 and respondent no.1
obtained joint
licence for construction of the said building and
after completion of the building project, respondent no. 2 issued
occupancy certificate jointly to petitioner
no.1 and respondent
no.1.
3.
The petitioners submit that said immovable property
stands jointly in the names of the petitioner no.1 and respondent
no.1.
They further submit that sometime in the year 2006,
respondent no.1 by suppressing material facts played a fraud upon
the petitioner no.1
and managed to obtain a trade licence
exclusively in his name to conduct business of lodging
and
3
restaurant from some portion of the building jointly owned by
petitioner no.1 and respondent no.1. They further submit that the
fact that the entire building is jointly owned by petitioner no.1 and
respondent no.1 was well within the knowledge of respondent no.2
and still respondent no. 2 granted trade licence to respondent no.1
allowing him to run from certain portion of the said building
restaurant and bar.
Petitioners submit that
in no case without
obtaining consent of petitioner no.1, respondent no. 2 could have
granted
petitioners
trade licence to respondent no.1.
Therefore,
the
filed a civil suit bearing Regular Civil Suit No.
40/2013/D against respondent no. 2 for seeking declaration that
trade licence granted by respondent no. 2 to respondent no.1 was
null and void and necessary reliefs.
4.
Respondent no.2 filed its written statement resisting
the suit. It contended that the trade licence was issued exclusively
in the name of respondent no.1 for the reason that respondent no.1
represented to it that though the premises in the said building were
jointly constructed by petitioner no.1 and respondent no.1, the
premises with the interference of Shri Ramesh Kamat and
Associates
were
partitioned
between
petitioner
no.1
and
respondent no.1 and by virtue of said partition, respondent no. 1 is
in exclusive possession and occupation of the portion of premises.
There is one more reason cited by respondent no. 2 for grant of
4
trade licence. It is submitted that since the statement was made by
respondent no.1 as regards the partition of the said immovable
property, respondent no.2 assessed the premises claimed to be in
exclusive possession of respondent no.1 and petitioner no.1 in
respect of their shares and assessed the same to tax in their
respective names.
5.
Mean while, respondent no.1 also filed an application
praying for intervention and seeking his joinder as a co-defendant
in the suit.
6.
The learned Civil Judge after hearing all the parties, by
an order passed on 20.12.2013, found that joining of respondent
no.1 as a party
defendant was necessary to determine the real
issues in controversy and that any order passed in the suit would
directly affect the respondent no.1
and accordingly allowed the
application directing the addition of respondent no.1 as defendant
no.2.
7.
Feeling aggrieved, the petitioners have preferred the
present writ petition.
8.
I have heard Shri Sudesh Usgoankar, learned counsel
for the petitioners and Shri V. G. P. Dukle, learned counsel for
5
respondent no.1 and Shri S. D. Padiyar, learned counsel for
respondent no.2.
With their assistance, I have carefully perused
the impugned order and gone through the paper book.
9.
Shri Usgaonkar, learned counsel for the petitioners has
submitted that the scope of power of the civil Court under Order 1
Rule 10 of the CPC, 1908, to add or delete parties is limited
to
ensure that real controversy in the suit is decided justly and
effectively. The power under this provision cannot be used by Civil
Court so as to widen the scope of the dispute between the parties,
so submits the learned counsel for the petitioners.
10.
According to him, the suit has been brought against
respondent no.2 and it is founded upon an illegal action of
respondent no. 2 in granting trade licence exclusively in the name
of respondent no. 2. He
submits that it was well within the
knowledge of respondent no. 2 that the premises in respect of
which trade licence has been
granted,
being jointly owned and
possessed by the petitioner no.1 and respondent no.1, it was
incumbent upon respondent no. 2 to obtain consent of petitioner
no.1 before issuing any trade licence exclusively in the name of
respondent no.1.
He
submits that
the information obtained by
petitioner no.1 by using the provisions of Right to Information Act
revealed that there was a noting made by respondent no. 2 dated
6
21.4.2006 in the file pertaining to the application of respondent
no.1 seeking trade licence in his own name that licence may be
issued subject to production of NOC from the co-owners and yet
the licence was issued by respondent no.2 to respondent no.1
exclusively. He further submits that it is this act of respondent
no.2 which has been challenged by the petitioners in Regular Civil
Suit No. 40/2013/D and nothing more.
Therefore, according to
him there is absolutely no reason for respondent no.1 to intervene
and try to say something in a suit the cause of action of which is
entirely and exclusively based upon the illegal action
done by
respondent no. 2 in the matter.
11.
Learned Counsel for the petitioners further submits
that respondent no.1 may have a right in respect of the said
property, but then, it would be for him to independently assert that
by filing another suit.
In fact, he further submits, the suit for
partition of property is already pending between petitioner no.1
and respondent no.1 and in that suit respondent no.1 can very well
agitate his alleged rights. He further submits that if respondent
no. 2 wants to justify its action in the present suit, it can choose to
examine respondent no.1 as its witness.
12.
In
sum
and
substance,
the
learned
counsel
for
petitioners submits that by allowing impleadment of respondent
7
no.1 as party defendant to the suit, the learned Civil Judge, has
unnecessarily
widened the scope of the suit which is not the
purpose of Order 1 Rule 10 of CPC and therefore, the impugned
order is bad in law and perverse.
13.
Shri Dukle, learned counsel for respondent no.1 has
submitted that it is well settled law that whenever presence of a
party is necessary for determination of real controversy in the suit,
it is the duty of the Court to ensure the presence of such a party in
the suit pending before it.
He further submits that the petitioners
may be in the position of “dominus litus” and, as such, may have a
right to decide as to who should and should not be a party to the
suit, yet such position of the petitioners being plaintiffs cannot be
construed to deprive the parties of the opportunity to submit their
say
before
the
Court,
if
their
presence
is
necessary
for
determination of the real controversy in the suit and that any
decision in the suit is likely to directly and substantially affect their
rights.
14.
He further submits that the test for ascertaining
the
presence of the party for determination of the real controversy
involved in the suit is whether or not the party has direct interest
in the suit and whether or not its right would be affected one way
or the other by a decision in the suit. According to him, this test is
8
well satisfied by the pleadings of the petitioners themselves and
therefore, learned Civil Judge has rightly allowed the intervention
application and directed addition of respondent no.1 as party
defendant to the suit.
15.
Shri Padiyar, learned counsel for respondent no.2 has
adopted the arguments of learned counsel for respondent no.1 and
agreed with all the submissions made by him on behalf of
respondent no.1. He submits that there is nothing illegal about the
order impugned herein and, therefore, this petition deserves to be
dismissed.
16.
Upon going through the impugned order, and the
pleadings of rival parties, as are available in the paper book, I am
of the view that there is great substance in arguments of learned
counsel for respondent nos. 1 and 2 and no merit in the arguments
of learned counsel for the petitioners.
17.
There can be no quarrel about the principle that the
power under Order 1 Rule 10 of C.P.C. must be exercised by a Civil
Court in a manner as to advance the cause of justice by doing that
which is a must for determination of real controversy involved in
the suit.
The power is not to be used just for the asking by any
party. The party who seeks its impleadment in the suit must satisfy
9
that
its
presence is necessary
for determination of real
controversy in the suit. The real test for ascertaining of the
presence of the party would lie in answer to the question as to
whether the party has interest in the suit and if the answer is yes,
the presence of party would become necessary. Reason being that
a party having interest in the lis is most likely to be affected
directly and substantially in its rights by a decision in the suit. But,
care has to be taken to ensure that interest of the party is real and
direct, and is not based upon a claim which has no direct relation
with the subject matter or cause of action of the suit or the reliefs
claimed in the suit. If the interest is remote or indirect, the party
would not be a necessary party and thus cannot be joined as party
to the suit.
18.
A plaintiff, no doubt, enjoys a status in the suit of what
is called as “dominus litus' entitling him to decide as to who should
be the party and who should not be. But such entitlement of the
plaintiff is not absolute and certainly cannot be used to defeat the
rights and interests of the other persons in relation to subject
matter of the suit and the reliefs claimed therein.
19.
In the case of Shaila Subrao Shetye Vs. Kunda
Madhukar Shetye, 2014(2) ALL MR 165, the learned Single
Judge of this Court has taken a view that status of the plaintiffs
10
being “dominus litus” is not absolute and it cannot be used to
defeat the statutory
rights of the other party to the suit and
therefore, it could not be an impediment in the way of the Court
considering an application either for addition or for deletion of the
parties. This view fortifies the above view taken by me.
20.
In the light of the principles set out hereinabove what
has to be seen is as to whether or not the impugned order stands
the scrutiny of law.
21.
A perusal of the impugned order discloses that these
very principles have been considered and applied to the facts of the
instant case by learned Civil Judge. She has found that this is a
case where in respondent no.1 has a direct interest in the subject
matter and the reliefs claimed in the suit and that any order passed
in the suit would directly affect respondent no.1. Learned Civil
Judge has also found that the trade licence has been given by
respondent no. 2 on the basis of documents submitted and
information given by respondent no.1 and therefore in order to
ascertain the genuineness and the veracity of the information and
documents, the presence of respondent no.1 as party defendant
would be necessary.
11
22.
These reasons are based upon the pleadings of rival
parties and logically arise
from those pleadings.
Therefore, it
cannot be said that the impugned order is so perverse or so ill-
logical as to warrant interference while exercising writ jurisdiction
under Article 227 of the Constitution of India.
23.
Needless to mention here that the jurisdiction of the
High Court under Article 227 of the Constitution of India is extra
ordinary and therefore is required to be exercised only in
exceptional cases where order impugned is perverse or absolutely
illegal having been passed in clear violation of well settled
principles of law or statutory provisions or is of such a nature that
if it is allowed to stand, it would result in causing of grave
miscarriage of justice. The order impugned herein is not an order
which can be called as perverse or absolutely illegal or in violation
of well established principles of law
or
in breach of statutory
provisions or of fundamental rights or of such a nature as would
cause great miscarriage of justice, unless quashed and set aside.
24.
After all trade licence has been granted by respondent
no.2 to respondent no.1 and the main relief claimed in the suit is of
declaration of trade licence as null and void. If the suit is allowed it
would result in cancellation of trade licence and thus would directly
and substantially affect the right of respondent no.2 accrued to him
12
after grant of trade licence rightly or wrongly.
The record of
respondent no. 2 may show the entire building to be jointly owned
by these parties and it may also show that initially it had asked for
a NOC from petitioner no.1.
But then,
it is also the case of
respondent no.2 that it was on the basis of some information
provided and some documents produced by respondent no.1 that it
was considered by it that trade licence in respect of the premises in
question could be issued to respondent no.1 in his exclusive name.
It is the further say of respondent no.2 that
the
premises in
question have been separately assessed to tax in the name of
respondent no.1, which action has been called illegal by the
petitioners.
In paragraph 23 of the plaint,
the petitioners have
specifically alleged that respondent no.1 has fraudulently and by
misrepresentation obtained trade licence from respondent no.1.
On the basis of these allegations the relief of cancellation of trade
licence has been prayed for. In such a situation, who else other
than respondent no.1 could answer such allegations and explain
the position. By giving evidence as witness for respondent no. 2,
the respondent no.1 cannot adequately and effectively explain the
facts and answer the charge against him.
He may be required to
lead evidence which he cannot do without his pleadings on record.
He cannot do it in a partition suit having a different cause of action
and respondent no. 2 being not a party thereto. He need not file a
13
separate suit also to assert his rights when law permits him to do
the same in this suit.
25.
For these reasons, I find that the impugned order has
been passed by learned Civil Judge by correctly applying
principles of law governing the
Order 1 Rule 10 of CPC.
the
discretion of Civil Court under
I do not find any perversity or any
illegality in the said order. There is no merit in the petition and it
deserves to be dismissed. Petition stands dismissed with no order
as to costs.
26.
Rule is discharged.
S. B. SHUKRE,J.
vn*
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