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2011 DIGILAW 320 (AP)

Ali Imam v. K. I. Askari

2011-04-08

G.V.SEETHAPATHY

body2011
ORDER This civil revision petition is directed against the order dated 7.7.2010 in IA No.80 of 2009, on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad, wherein the said application filed by the first respondent herein under Order I Rule 10 CPC to implead him as D4 in the suit and as respondent No.4 in the I.A. was allowed. 2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. Perused the records. 3. The petitioner herein filed the suit against respondents 2 to 4 for a declaration that Proceedings No.70/35-88/B/9-5-1979 dated 24.3.1980 issued by the first respondent (respondent No.3 herein-GHMC) in respect of the schedule property-I is null and void and for a permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property-II and the front portion of the land to an extent of 100 square yards situate at Chapel Road, Hyderabad. According to the petitioner/plaintiff, he is the absolute owner and possessor of the house bearing Municipal No.5-9-88/B/1, Ali Chambers, Fateh Maidan Road, Hyderabad, having purchased the same under a registered sale deed date 24.3.1977. According to the plaintiff, he is owner of the site to the east of the house leading to the main road i.e., Chapel Road and there is an old iron gate also at the place where the site joins the main road. The said site of 100 square yards is stated to be part of total extent of 471.66 square yards bearing Municipal Door No.5-9-88/B/1. The plaintiff complains that the GHMC has started claiming the said site to be a common passage wrongly and, therefore, the plaintiff filed the suit for declaration that the proceedings issued by the Municipality on 24.3.1980 is null and void and for injunction. The GHMC filed a written statement contesting the suit. The plaintiff also filed IA No.44 of 2009 for temporary injunction. The first respondent herein filed IA Nos.78 and 80 of 2009 under Order I Rule 10 CPC seeking to get impleaded as D4 in the suit and respondent No.4 in IA No.44 of 2009. The petitioner herein opposed the said applications on the ground that the first respondent has no concern with the subject-matter of the suit. The trial Court, by the impugned order, allowed the said applications, permitting the first respondent herein to come on record. The petitioner herein opposed the said applications on the ground that the first respondent has no concern with the subject-matter of the suit. The trial Court, by the impugned order, allowed the said applications, permitting the first respondent herein to come on record. Aggrieved by the same, the present civil revision petition is filed by the plaintiff. 4. According to the first respondent, the disputed site is a common passage and being the adjacent owner, he is also interested in the subject-matter of the suit and, therefore, he is a proper and necessary party to the suit. The petitioner-plaintiff, on the other hand, would contend that the first respondent has no manner of right, title or interest in the disputed passage and there is no entrance or doorway or access from his building into the above said site and the access to the first respondent's building is directly to the main road. It is not disputed that the respondent's building has got direct access to the main road. There is no opening from his building into the disputed site. The dispute in the suit is between the petitioner who claims that the above said site of 100 square yards as his exclusive property being part of the front yard of the house in a total extent of 476 square yards and GHMC who issued the impugned proceedings treating the said site as a common passage to the plaintiff and others. In the affidavit filed in support of the application, the first respondent has claimed that he has been enjoying easementary rights for the last 40 years through the ventilators overlooking the disputed passage and, therefore, he is a necessary party to the proceedings. Thus, the claim of the first respondent is based on the alleged prescription of easementary rights. Admittedly, he does not have any joint rights of ownership in the disputed site along with the plaintiff or others. The presence of the first respondent is, therefore, not required to adjudicate the dispute as to whether the disputed site is an exclusive passage of the plaintiff as claimed by him or common passage for the plaintiff and others as alleged by the GHMC. The first respondent is neither a proper nor a necessary party for adjudication of the dispute which is essentially between the plaintiff and GHMC. 5. The first respondent is neither a proper nor a necessary party for adjudication of the dispute which is essentially between the plaintiff and GHMC. 5. The learned Counsel for the first respondent relied upon a decision in Hiranand and others v. T.M. Kambati and others, 1996 (4) ALD 919 = 1997 (1) ALT 355 , wherein it was held that the neighbour aggrieved by the unauthorized construction can implead himself in a suit against unauthorized construction can implead himself in a suit against Municipal Corporation. In the above case, it was found that the neighbours who sought to come on record would be directly affected if the declaration and injunction as prayed for was granted and the immediate neighbour was possessed of sufficient interest to see that the land kept for common purpose is not diverted for any other purpose. In the present case, the first respondent admittedly has no common right, title or interest in the disputed site and he only claims an easementary right of air and light through the windows/ventilators in his wall overlooking the disputed site. The decision cited is, therefore, not applicable to the facts of the present case. It is open to the first respondent-plaintiff to file a separate suit or initiate appropriate proceedings against the plaintiff herein for establishing his alleged right of easement over the disputed site. He is, therefore, neither a proper nor a necessary party to the present suit, wherein the dispute is in between the plaintiff and the GHMC in respect of the nature and character of the disputed site. 6. It is well settled that the plaintiff may choose the defendants against whom he seeks a relief and he cannot be compelled to sue a person against whom he seeks no relief, as held by the apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Ltd. and others, 2010 (5) ALD 24 (SC) = 2010 (5) SCJ 831 = AIR 2010 SC 3109 = 2010 AIR SCW 4222. "A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. "A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party, who though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.", 7. In view of the principles laid down in the above decision and the first respondent herein not being either necessary or proper party to the present suit, the impugned order permitting his impleadment is held unsustainable and the same is accordingly set aside. 8. In the result, the civil revision petition is allowed. There shall be no order as to costs.