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2009 DIGILAW 230 (AP)

Mohd. Maqsool Ali v. Abul Khair Khan

2009-04-02

P.S.NARAYANA

body2009
Judgment :- (1) Heard Sri Jithender Rao veera Malla and Sri Rama Rao Ghanta, counsel representing the parties. (2) This Court ordered Notice Before admission on 24. 2. 2009 and granted interim stay for a limited period. (3) The matter is coming up for admission. (4) Sri Ghanta Rama Rao entered appearance on behalf of the contesting respondent. (5) This civil revision petition is filed as against an order made in I. A. No. 222/ 2008 in IA No. 165/ 2008 in OS No. 262/ 2008 on the file of XIII Additional Senior civil Judge (Fast Track Court), City Civil court, Secunderabad. The learned Judge had made a common order in IA Nos. 221/ 2008 and 222/2008 in IA No. 165/2008 in OS no. 262/2008. These applications were filed under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, in short hereinafter referred to as "code" for the purpose of convenience, to implead Abdul khair Khan, the respondent in the civil revision petition as 2nd defendant in the suit and also in the application IA No. 165/2008 respectively. The learned Judge after referring to the respective stands taken by the parties, having formulated the Point for consideration at Para 5, recorded reasons at paras 6, 7, 8 and 9 and ultimately allowed the application impleading the petitioner as 2nd defendant in the suit and also as 2nd respondent in IA No. 165/2008. Liberty was given to the respondent herein/petitioner in the said application to take separate steps for reopening of IA No. 165/2008 since the application was closed. Though common order was made, it appears the order made in IA No. 222/2008 in OS No. 262/2008 alone had been challenged and it is needless to say that the order made in IA No. 221/2008 in the said suit had been left unchallenged.- (6) Sri Jithender Veera Mallu, the learned Counsel representing the petitioners/plaintiffs in the suit, would maintain that the learned Judge made such an order without properly appreciating the respective stands taken by the parties. The learned counsel also would maintain that the proposed party has no locus standi to question the constructions made by the revision petitioners. The Counsel also would maintain that if at all easementary rights are affected by virtue of the constructions made by the petitioners, the proposed party who intends to come on record can file a separate suit. The learned counsel also would maintain that the proposed party has no locus standi to question the constructions made by the revision petitioners. The Counsel also would maintain that if at all easementary rights are affected by virtue of the constructions made by the petitioners, the proposed party who intends to come on record can file a separate suit. In this view of the matter, it cannot be said that such party is either a proper party or necessary party to the present suit. The Counsel also would maintain the result of WP No. 14043/2008 which was filed by the respondent has no bearing at all on the present litigation. The counsel ultimately would conclude that in the light of the facts and circumstances, the impugned order cannot be sustained and hence the civil revision petition to be allowed. (7) On the contrary Sri Ghanta Rama rao, the learned Counsel representing the respondent/proposed party would maintain that in the light of the convincing reasons recorded by the learned Judge, after referring to the relevant decisions on the Point it cannot be said that the impugned order suffers from any illegality whatsoever. The counsel also had taken this Court through the reasons which had been recorded by the learned Judge at Paras 7, 8, 9 and 10 and would maintain that in the light of the said reasons, the civil revision petition to be dismissed. (8) Heard the Counsel. (9) In the light of the averments made by the Counsel on record, the following points arise for consideration in the present civil revision petition: (i) Whether the order under challenge in the present civil revision petition is liable to be set aside or to be confirmed in the facts and circumstances of the case? (ii) If so to what relief the parties would be entitled to? (10) Point No. 1: The respondent/petitioner in the present civil revision petition is the petitioner in IA Nos. 221 and 222/2008 in IA No. 165/2008 in OS No. 262/2008 aforesaid. These applications were filed to implead the said party as either a proper party or a necessary party, both in the suit and also in application IA No. 165/2008 under order I Rule 10 read with Section 151 of the Code. The revision petitioners herein/respondents 1 to 6 interest said application, opposed the same by filing counter in detail. These applications were filed to implead the said party as either a proper party or a necessary party, both in the suit and also in application IA No. 165/2008 under order I Rule 10 read with Section 151 of the Code. The revision petitioners herein/respondents 1 to 6 interest said application, opposed the same by filing counter in detail. It is the case of the respondent herein/proposed party who prayed for coming on record that the revision petitioners herein are residing on the Northern side of the property and as they intended to proceed with the constructions without obtaining lawful permission from GHMC and since they had not maintained the requisite setbacks, the proposed party lodged a complaint before the aforesaid Corporation and also made several requisitions to the concerned authorities and since they failed to take any action, the proposed party also filed WP No. 14043/2008 and certain further facts also had been narrated and it is stated that a suit had been instituted and on misrepresentation an ex parte order had been made in IA No. 165/2008 and in such circumstances since the proposed party also is affected party, his application under order I Rule 10 read with Section 151 of the Code to be allowed. (11) The application was resisted to the effect that the revision petitioners/plaintiffs are the neighbours and after purchase they made construction in the plaint schedule property and they had applied for permission to the GHMC, Hyderabad and they also applied for regularization of unauthorized constructions, if any. Specific stand had been taken that the proposed party has no locus standi to question such constructions. (12) As already aforesaid, the learned judge formulated the Point for consideration at Para 5, recorded reasons at Paras 6 to 10 and ultimately allowed the applications as aforesaid. It is needless to say that though common order was made both in IA nos. 221 and 222 of 2008 aforesaid, the order in IA No. 222/2008 alone had been challenged by way of the present civil revision petition under Article 227 of the constitution of India. It is needless to say that though common order was made both in IA nos. 221 and 222 of 2008 aforesaid, the order in IA No. 222/2008 alone had been challenged by way of the present civil revision petition under Article 227 of the constitution of India. Apart from this aspect of the matter, the Counsel for the respondent/proposed party placed strong reliance on vasavi Kanyaka Seva Trust, Ramanthapur v. District Collector, R. R. District, hyderabad and others, 2000 (3) ALD 115 , wherein the learned Judge at Paras 12 and 13 observed : "In view of the aforesaid principles as laid down by the apex Court and also a Division bench of this Court, the provisions under order 1 Rule 10 CPC have to be given a very liberal interpretation. There cannot be a blanket proposition that in every suit for injunction, the parties cannot be impleaded and Order 1 Rule 10 CPC cannot be made applicable. No doubt, each case has to be looked from the facts and circumstances involving therein vis-a-vis the pleas as set up by the parties. If the parties on either side come up with independent titles and claims, it cannot be said that the scope of the enquiry is as narrow as to treat the suit as one for simpliciter injunction but certainly gets widened to embark upon the question of title. In Sannasi Ambalagarau v. Venkatapathy Chetty, 1909 IC Vol-II 421, a division Bench of the Madras High Court held : "Where title is denied, a suit for injunction is maintainable, though not coupled with a prayer for declaration of title, as the prayer for an injunction necessarily involves a declaration of title. "As already held, it has to be seen as to whether the presence of the party, though may not be a necessary, would be a proper one and enables the Court to properly adjudicate the matter in the presence of all the parties and the material as produced on their behalf. Any such denial would not only may lead to inconsistent decrees in respect of the same subject-matter and in some cases, collusive decrees cannot be ruled out to hoodwink the real title holders. Any such denial would not only may lead to inconsistent decrees in respect of the same subject-matter and in some cases, collusive decrees cannot be ruled out to hoodwink the real title holders. I have perused the affidavit filed in support of the applications to implead and I am satisfied that there is justifiable claim touching upon the subject-matter and the respondent No. 3's presence would only enhance the assistance to the Court." (13) Further strong reliance was placed on Neelam Ajit v. Suresh Reddy, 2005 (5)ALT 471 = 2005 (6) ALD (NOC) 223, wherein the learned Judge at Paras 6, 7, 8 and 9 observed : "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 others v. Harish Chetwal and others, 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. 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. " 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. 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. 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. 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. " (14) In the light of the views expressed by the learned Judges of this Court in the decisions aforesaid and also further in view of the fact though a common order had been made and the revision petitioners had not chosen to challenge the order made in IA No. 221/2008, this Court is of the considered opinion that the civil revision petition is devoid of merit. (15) Point No. (ii): In the light of the foregoing discussion, it is needless to say that the civil revision petition is liable to be dismissed being devoid of merit and accordingly the same shall stand dismissed. No costs.