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2012 DIGILAW 1379 (BOM)

Dada s/o. Gopinath Nimse v. Collector, Ahmednagar

2012-07-25

R.M.BORDE

body2012
JUDGMENT Application moved by third party applicants seeking their impleadment in the suit has been allowed by the trial Court in view of order passed below exh. 13 in Regular Civil Suit No. 320/2011. 2. The suit is presented by petitioner / plaintiff raising challenge to the notice issued by the Tahsildar directing the petitioner to remove encroachment allegedly made on the public way. According to plaintiff, there is no public way as contended in the notice and construction is made by him on the area belonging to him. Third party applicants in their application contended that they are the adjoining owners of the land and the suit way is being used by them as access to their property. It is contended that petitioner is extending threats and prohibiting third party applicants from using the way. As such they moved public authority for taking action against petitioner. Trial Court, considering the contentions raised by third party applicants that they would be directly affected by result of the suit and they have cause of action against petitioner, permitted their impleadment in the suit. 3. Learned counsel for petitioner assailing the order passed by the trial Court contends that plaintiff is a dominus litus and no reliefis claimed against third party applicants and the suit would be maintainable in their absence. It is thus contended that respondents are neither necessary nor proper parties to the suit. Reliance is placed on a judgment in the matter of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay and others reported in 1992 AIR SCW 846. Suit was presented in the reported matter challenging validity of notice issued by Municipal Corporation as well as seeking injunction. Plaintiff was in possession of the service station in view of the dealership agreement executed in the year 1974 and had erected service station in the land held by respondents therein. Hindustan Petroleum Corporation presented application seeking impleadment in the suit contending that the Corporation has material to show that the construction raised by plaintiff is unauthorised. Trial Court directed impleadment of respondent i.e. Hindustan Petroleum Corporation as party defendant which was subject matter of challenge in the petition presented to this Court. This Court, however, dismissed the petition which order was challenged before the Apex Court. Trial Court directed impleadment of respondent i.e. Hindustan Petroleum Corporation as party defendant which was subject matter of challenge in the petition presented to this Court. This Court, however, dismissed the petition which order was challenged before the Apex Court. While dealing with the contentions raised by petitioner/plaintiff, it was observed by the Apex Court that merely because respondent / Hindustan Petroleum Corporation has material to demonstrate that construction raised by plaintiff is unauthorised will not make the Corporation necessary or proper party. The Corporation can be at the best proper witness in the suit. It was observed by the Apex Court that the Corporation had no legal entitlement nor has any cause of action against plaintiff. In paragraph nos. 14 and 15 of the judgment it is observed thus: 14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. 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 party 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 the 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. 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. Similar provision was considered in Amon V. Raphael Tuck and Sons Ltd. (1956) 1 ALL ER 273, wherein after quoting the observations of Wynn-Parry, J, in Dollfus Mieg et Compagnie SA v. Bank of England, (1950) 2 All ER 605 (611) that the true test lies not so much in any analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. Devlin, J. he stated:- "The test is "May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights." 15. It has been strenuously contended before us that the second respondent has no interest in the subject-matter of the litigation and the presence of the respondent is not required to adjudicate upon the issue involved in the suit or issued by the Municipal Corporation to the appellant and the issue is whether it is justified or not. The Hindustan Petroleum Corporation Limited is interested in supporting the Municipal Corporation and sustaining the action taken against the appellant. But that does not amount to any legal interest in the subject-matter in the sense that the order, if any, either in favour of the appellant or against the appellant would be binding on this respondent. It is proposed by the Municipal Corporation against the appellant, but for the purposes of granting the relief sought for by the appellant by examining the justification of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. If that be so, the presence of the respondent cannot be considered as necessary for the purpose of enabling the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The appellant is proceeded against by the Municipal Corporation for the alleged action in violation of the municipal laws. The grievance of the respondent against the appellant, if any, could only be for violation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated nor permissible. The grievance of the respondent against the appellant, if any, could only be for violation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated nor permissible. In the instant matter, third party applicants contend that they are the adjoining land owners and as a result of unauthorised construction raised by plaintiff, their right of access is affected. It is contended by third party applicants that construction is on the public way which affects rights of those persons to use the public way and the third party applicants being the adjoining land owners are directly' affected. Third party applicants contend that they have existing cause of action against plaintiff and also have entitlement to use the disputed area. In view of peculiar facts and circumstances of the instant case, reliance placed on the judgment of the Apex Court is misplaced. 4. Learned counsel for respondents has invited my attention to the judgment of the learned Single Judge of this Court in the matter of Chandrakant Dharma Bhonu vs. Pandurang Ramchandra Dandekar and another reported in AIR 2004 Bombay 374. In the reported matter application tendered by adjoining owner who was directly affected by unauthorised construction was entertained on the ground that third party applicants have cause of action and they would be directly affected by determination of issues those would be raised in the suit. In view of these facts and circumstances, I am of the view that trial Court is well within its limits in entertaining the application and permitting third party applicants to claim impleadment in the suit. Petition is devoid of substance hence stands rejected. 5. Pending civil application, if any, does not survive and stands disposed of. Petition dismissed.