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2005 DIGILAW 104 (KAR)

MURALILAL CHABRIYA v. S. MURALI

2005-02-10

S.B.MAJAGE

body2005
S. B. MAJAGE, J. ( 1 ) I. A. III OF 2004 the appellant wants to implead BDA, Bangalore as respondent 3 in this appeal for the reasons stated in his affidavit filed in support of I. A. III filed under Order 1, Rule 10 read with Section 151 of the CPC. ( 2 ) IT was vehemently argued for the appellant that in view of the provisions contained in Order 1, Rule 10, Order 43, Rule 2 read with order 41, Rule 20 besides Section 151 of the CPC and certain decisions referred, the proposed third respondent is a necessary and proper party and as such, could be impleaded as third respondent. On the other hand, the learned Counsel for the contesting respondent opposed the request submitting that the proposed third respondent is neither a necessary party nor a proper party in the present appeal and the provisions and decisions relied on for the appellant do not help the appellant to implead third respondent. Of course, the proposed third party has not opposed the request. Perused the records carefully. ( 3 ) THE point for consideration is: "whether the BDA could be impleaded as third respondent or not?" ( 4 ) IT is the case of the appellant that as a member of Amar Jyothi house Building Co-operative Society Limited, a site bearing No. 91 formed by the said Society in Sy. Nos. 57 to 82 of Domlur Village, bangalore North Taluk was allotted to him and even registered sale deed was executed in his favour after the BDA released said site, and he was put in possession of the same, but the respondent is falsely contending that Site No. 91 falls within Sy. Nos. 57/5 and 58/4 of domlur Village and as such, to know whether Site No. 91 under suit falls within Sy. Nos. 57 to 82 of Domlur Village or Sy. Nos. 57/5 and 58/4 of Domlur Village, it is necessary to consider the layout approved by the bda as the Planning Authority and hence, it is just and necessary to implead the BDA as third respondent in this appeal to give a quietus to the entire controversy. ( 5 ) THUS, it is clear that the appellant wants to implead BDA to show that the case of the respondent is false and cannot be accepted and his case could be accepted. ( 5 ) THUS, it is clear that the appellant wants to implead BDA to show that the case of the respondent is false and cannot be accepted and his case could be accepted. ( 6 ) IT is true that the dispute between the parties centers around the fact that out of which survey number/numbers, the suit property has been formed. But, to show the same, the appellant was/is at liberty to produce record of layout approved by BDA as the Planning Authority and for that purpose, the presence or absence of BDA is not at all necessary. ( 7 ) THAT apart, the proposed respondent was not a party before the trial Court and the impugned ordering neither in favour nor against the proposed third respondent and it does not affect the proposed third respondent in any way. That may be the reason why the proposed third respondent has not sought to implead itself as third respondent and rightly, because it is in no way going to be affected by the order passed or to be passed in the proceedings between the parties relating to suit property. So, whether the proposed third respondent-BDA could be impleaded as a party, that too, in this appeal when it was not a party before the Trial Court when the impugned order was passed, is the point to be considered. ( 8 ) UNDER Order 1, Rule 10 (2) of the CPC, a Court may, at the stage of the proceedings with or without an application, order the name of any person, who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, could be added. So, the criteria is the presence of a party may be necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit and if it is not so, such a person or party cannot be impleaded in the suit. So, the criteria is the presence of a party may be necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit and if it is not so, such a person or party cannot be impleaded in the suit. ( 9 ) SINCE the request made is not in the suit and as it is in appeal, that too, in miscellaneous appeal, reliance was placed on Order 43, Rule 2 of the CPC, which says that rules of Order 41 shall apply "so far as may be" to the appeals from orders. Reliance was also placed on a Full Bench decision of this Court in the case of M/s. Patel Enterprises, Bangalore v m. P. Ahuja and Others, wherein the words "so far as may be" found in order 43, Rule 2 of the CPC have been considered. So, let me see Order 41, Rule 20 of the CPC, which reads as under:"rule 20. Power to adjourn hearing and direct persons appearing interested to be made respondents.- (1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent". According to the said provision, a person who was a party to the suit in the Court, but not made a party in the appeal, could be impleaded as respondent. Admittedly, the proposed third respondent-BDA is not a party to the suit. Hence, said provision does not help the appellant. ( 10 ) NEXTLY, reliance was placed on Section 151 of the CPC under which, Court may pass such orders as may be necessary for the ends of justice or to prevent the abuse of process of Court. Reliance is placed on a decision of the Federal Court in the case of United Provinces v Mt. ( 10 ) NEXTLY, reliance was placed on Section 151 of the CPC under which, Court may pass such orders as may be necessary for the ends of justice or to prevent the abuse of process of Court. Reliance is placed on a decision of the Federal Court in the case of United Provinces v Mt. Atiqa Begum and Others, wherein it is held thus : "the language of (Order 41) Rule 20 does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by Section 151". In the case of Conugunta Subbarayudu v Eluri Brahmanandan and others, relied on for the appellant, the view taken by the Federal Court had been reiterated. It is further held therein that in proper cases, appropriate provisions including Section 151 of the CPC could be availed along with Order 1, Rule 10 (2) read with Section 107 (2) of the CPC. So, also in the case of Notified Area Committee, Buria v Gobind Ram lachhman Dass and Others, Full Bench of Punjab High Court has held thus:"section 107 (2) read with Order 1, Rule 10, CPC enables the appellate Court to add parties in appeals in suitable cases, but this power must be exercised within the period of limitation. Apart from the provisions of Order 41, Rule 20, the Appellate court has inherent powers to permit parties to be added to appeals in suitable cases and the language of Rule 20 of Order 41 is not exclusive or exhaustive so as to deprive the Appellate Court of the inherent powers in this respect. No inflexible rule of interpretation of the words "interested in the result of the appeal" in Order 41, Rule 20, has been given by the Privy Council in V. P. R. V. Chockalingam Chetty v Seethai Ache and Others, AIR 1927 PC 252, and it must be decided on the facts and circumstances of each particular case whether the person sought to be added in that case is one interested in the result of the appeal. The Privy Council case cannot, at any rate, be taken to be an authority for the proposition that a party left our or not impleaded in appeal on account of a bona fide mistake cannot be so impleaded under the inherent powers of the Court, more especially when the error is on the part of the Court or its officials in supplying an erroneous copy either of the decree or of the judgment". All the said decisions relied on for the appellant certainly support the argument that under Section 151 of the CPC, a party, not impleaded in the suit, could be added in appeal and, if necessary, in a given case for ends of justice or preventing abuse of process of Court, section 151 of the CPC also could be invoked for which there can be no dispute. Except the said proposition nothing more could be deduced from the said decisions relied on for the appellant. So, what requires to be considered is, whether the case on hand is such to invoke Section 151 of the CPC or not ? ( 11 ) AS noted already, the presence or absence of the proposed third respondent is not of any consequence because without the presence of the proposed third respondent also, the appeal could be decided effectually and completely and not that it cannot be decided. In fact, the point for consideration in the appeal is, whether or not, exercise of discretion by the Trial Court could be said to be arbitrary, capricious or unreasonable or against the record. But, to decide that point, presence of bda as third respondent in the appeal is of no help. This is because, if the record of layout approved by the BDA as Planning Authority is produced, the purpose for which the BDA is sought to be impleaded as third respondent does not survive at all. ( 12 ) IT is well-settled that no person could be added as a party unless he is a necessary or proper party. In the case of Udit Narain Singh malpaharia v Additional Member, Board of Revenue, Bihar and another, the Supreme Court has observed thus.-"the law on the subject is well-settled. It is enough, if we state the principle. ( 12 ) IT is well-settled that no person could be added as a party unless he is a necessary or proper party. In the case of Udit Narain Singh malpaharia v Additional Member, Board of Revenue, Bihar and another, the Supreme Court has observed thus.-"the law on the subject is well-settled. It is enough, if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding". In the case of M/s. Importers and Manufacturers Limited v Pheroze framroze Taraporewala and Others , the Supreme Court held that in a suit for possession by a landlord against a tenant, sub-tenant is merely a proper party and not a necessary party. So also in the case of Rupchand gupta v Raghuvanshi (Private) Limited and Another. Same has been reiterated by the Supreme Court recently in the case of Balavant N. Viswamitra and Others v Yadav Sadashiv Mule (deceased) by L. Rs and others. ( 13 ) IN the above view, BDA cannot be said a necessary or a proper party to come on record as third respondent in this appeal, particularly when kept in mind the nature and scope of the present appeal besides the points, which require to be considered in such appeals. So, it is not necessary to invoke Section 151 of the CPC as, if not exercised that power, no injustice would be caused, nor there will be any abuse of process of Court. Consequently, I do not find any reason whatsoever to implead BDA as third respondent in the present appeal. In the result, I. A. III of 2004 filed to implead BDA as third respondent is dismissed. --- *** --- .