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2010 DIGILAW 1221 (BOM)

Francisco Rodrigues v. Angelica Rebello

2010-08-23

N.A.BRITTO

body2010
Judgment :- 1. Heard. Rule. By consent heard forthwith. 2. The petitioners herein are the plaintiffs in RCS No.53/2006/F and shall hereinafter be referred to as such. 3. There is no dispute that the suit property surveyed under No.9/4 belonged to Maria Luisa Isabela Fernandes, the sister-in-law of the father of the plaintiffs. There are two houses in the said property. One is bearing house no.101/A and the other bearing no.101/B. The house bearing no.101/B is in occupation of the plaintiffs though the said Maria Luisa Isabela Fernandes by gift deed dated 9/02/2006, gifted the said house along with adjoining property to Assumpta Fernandes, who has filed a suit against the plaintiffs for recovery of the same and the suit is pending. House no.101/A with the surrounding property has been sold to the defendant by the said Maria Luisa Isabela Fernandes by a sale deed dated 18/01/2006. The said Maria Luisa Isabela Fernandes expired on 4/12/1996. 4. The plaintiffs have filed RCS No.53/2006/F for injunction simpliciter against the defendant to restrain the defendant from blocking or obstructing the suit passage/pathway or from doing any construction work thereon and for restraining the defendant from obstructing the plaintiffs from cleaning the septic tank situated in front of house bearing no.101/A and partly on the said suit access. 5. The defendant filed an application dated 19/02/2010, to add the said Assumpta Fernandes as party defendant to the suit stating that a part of the property surveyed under no.9/4 having the said house was gifted by Maria Luisa Isabela Fernandes to Assumpta Fernandes and as the said Assumpta Fernandes had direct and substantial interest in the subject matter of the suit, her presence was necessary in order to adjudicate the real issues in controversy between the parties. That application came to be allowed by the learned Civil Judge Junior Division by order dated 4/05/2010, observing that by virtue of the gift deed dated 9/02/2006 she was necessary party to the suit as she had direct and substantial interest in the subject matter of the suit. 5A. Shri Diniz, learned Counsel appearing on behalf of the plaintiffs submits that the plaintiff is a dominus litis and cannot be made to fight against a person he does not wish to fight. 5A. Shri Diniz, learned Counsel appearing on behalf of the plaintiffs submits that the plaintiff is a dominus litis and cannot be made to fight against a person he does not wish to fight. Counsel further submits that the plaintiffs are in occupation of house no.101/B and the plaintiffs' suit is for injunction simpliciter and adding the said Assumpta Fernandes will only escalate the controversy between the parties making the suit of the plaintiffs into a title suit. Learned Counsel submits that the suit filed by the said Assumpta Fernandes for recovery of possession of house no.101/B is bound to take its time and, by adding her, the controversy could not have been allowed to be enlarged. Learned Counsel submits that the plaintiffs have filed the suit for injunction simpliciter because the defendant is trying to block their passage. Learned Counsel has placed reliance on the decision of the Apex Court in J.J. Lal Pvt. Ltd. And Ors. Vs. M.R. Murali and Anr. ( 2002 (3) SCC 98 ) wherein the Apex Court has held as follows: "28. Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord-tenant suit. The relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings. The impleadment of any of the two applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title whatever it may be in any independent proceedings before a competent forum. The applications for impleadment are dismissed." 6. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title whatever it may be in any independent proceedings before a competent forum. The applications for impleadment are dismissed." 6. On the other hand, Shri C. Mascarenahs, learned Counsel on behalf of the defendant, submits that after the defendant having come to know about the gift deed dated 9/02/2006, the defendant asked the said Assumpta Fernandes to be joined as a party because the decision in the suit was bound to affect her rights. Learned Counsel has placed reliance on the decision of the Allahabad High Court in the case of Smt. Shail Kumri & Ors. Vs. Smt. Asha Srivastava and others. (AIR 2005 Allahabad 35), which according to the learned Counsel squarely applies to the case at hand. 7. In the case of Smt. Shail Kumri & Ors. (supra), the Allahabad High Court had referred to the case of Savitri Devi Vs. District Judge ( AIR 1999 SC 976 ) which in turn had referred to the case of Ramesh Hirachanda Kundanmal Vs. Municipal Corporation of Greater Bombay (1992 AIR SCW 846) wherein the Apex Court had held that: "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 and that a person should be impleaded as party so far as he should be bound by the result of the suit and the question to be settled." 8. The Apex Court reiterated that the plaintiff is 'dominus litis' and not bound to sue every possible adverse claimant in the suit. 9. This is a case where it is the defendant who is trying to romp in the said Assumpta Fernandes who has not shown any interest to be joined in the suit of the plaintiffs. 10. In my view, the plaintiffs filed the suit for injunction simpliciter only to restrain the defendant from interfering with the suit passage claimed by them or from cleaning the septic tank by virtue of the plaintiffs being in occupation of house no.101/B in the suit property. 10. In my view, the plaintiffs filed the suit for injunction simpliciter only to restrain the defendant from interfering with the suit passage claimed by them or from cleaning the septic tank by virtue of the plaintiffs being in occupation of house no.101/B in the suit property. The suit will either succeed or fail and in either way it is not going to affect the rights of the said Assumpta Fernandes in any manner. On the contrary, in case the plaintiffs succeed, then the said Assumpta Fernandes may even be benefited from the result of the suit, in case the said Assumpta Fernandes succeeds in the civil suit filed by her against the present plaintiffs, she having become the owner of the suit house and the property by virtue of the gift deed dated 9/02/2006 made by the said Maria Luisa Elizabeth Fernandes. The said Assumpta Fernandes was not a necessary party to the plaintiff's suit in that no relief was sought against her in as much as her presence was also not required to decide the controversy between the plaintiffs and the defendant. As rightly pointed out by learned Counsel on behalf o the plaintiffs by adding the said Assumpta Fernandes, the controversy would only widen without any benefit to either the plaintiffs or the defendant. The defendant can always cite the said Assumpta Fernandes as her witness in case they so desire. It may be stated that in the case of Ramesh Hirachanda Kundanmal Vs. Municipal Corporation of Greater Bombay (Supra), the Apex Court has also reiterated that: "The person 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 evidence 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 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 part to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in action which cannot be effectually and completely settled unless he is a party. The only reason which makes it necessary to make a person a part to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in 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 therefore necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing 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." 11. The Apex Court in Milk Specialities Ltd. Vs. Rajiv Singh ( 2005 (11) SCC 403 ) has again observed that the question is whether the right of a person may be affecting, if he is not added as a party. 12. Considering the facts of the case therefore, the writ petition deserves to succeed. The impugned order has been passed in a wrong exercise of discretion and without application of mind to the facts of the case. In other words, the learned Civil Judge has exercised its jurisdiction with material irregularity. Therefore, the impugned order is hereby set aside. Parties to appear before the learned Civil Judge on 31st instant at 10.00 a.m. for further proceedings. Rule made absolute in terms of prayer clause (a).