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Bombay High Court · body

2014 DIGILAW 787 (BOM)

Premanand Gajanan Naik v. Sachit Gajanan Naik

2014-03-25

S.B.SHUKRE

body2014
JUDGMENT 1. By this petition, the petitioners have challenged the order passed on 20.12.2013 in Regular Civil Suit No. 40/2013/D allowing the impleadment of respondent no.1 as defendant no. 2 to the suit. 2. It is the case of the petitioners that petitioner no.1 and respondent no.1 are brothers and co-owners of immovable property situated at Miranda road, Margao Goa. The petitioners submit that petitioner no.1 and respondent no.1 obtained a construction licence in their joint names for erection of a building on the said immovable property from the MMC Margoa, respondent no. 2. They further submit that petitioner no.1 and respondent no.1 obtained joint licence for construction of the said building and after completion of the building project, respondent no. 2 issued occupancy certificate jointly to petitioner no.1 and respondent no.1. 3. The petitioners submit that said immovable property stands jointly in the names of the petitioner no.1 and respondent no.1. They further submit that sometime in the year 2006, respondent no.1 by suppressing material facts played a fraud upon the petitioner no.1 and managed to obtain a trade licence exclusively in his name to conduct business of lodging and restaurant from some portion of the building jointly owned by petitioner no.1 and respondent no.1. They further submit that the fact that the entire building is jointly owned by petitioner no.1 and respondent no.1 was well within the knowledge of respondent no.2 and still respondent no. 2 granted trade licence to respondent no.1 allowing him to run from certain portion of the said building restaurant and bar. Petitioners submit that in no case without obtaining consent of petitioner no.1, respondent no. 2 could have granted trade licence to respondent no.1. Therefore, the petitioners filed a civil suit bearing Regular Civil Suit No. 40/2013/D against respondent no. 2 for seeking declaration that trade licence granted by respondent no. 2 to respondent no.1 was null and void and necessary reliefs. 4. Respondent no.2 filed its written statement resisting the suit. It contended that the trade licence was issued exclusively in the name of respondent no.1 for the reason that respondent no.1 represented to it that though the premises in the said building were jointly constructed by petitioner no.1 and respondent no.1, the premises with the interference of Shri Ramesh Kamat and Associates were partitioned between petitioner no.1 and respondent no.1 and by virtue of said partition, respondent no. 1 is in exclusive possession and occupation of the portion of premises. There is one more reason cited by respondent no. 2 for grant of trade licence. It is submitted that since the statement was made by respondent no.1 as regards the partition of the said immovable property, respondent no.2 assessed the premises claimed to be in exclusive possession of respondent no.1 and petitioner no.1 in respect of their shares and assessed the same to tax in their respective names. 5. Mean while, respondent no.1 also filed an application praying for intervention and seeking his joinder as a codefendant in the suit. 6. The learned Civil Judge after hearing all the parties, by an order passed on 20.12.2013, found that joining of respondent no.1 as a party defendant was necessary to determine the real issues in controversy and that any order passed in the suit would directly affect the respondent no.1 and accordingly allowed the application directing the addition of respondent no.1 as defendant no.2. 7. Feeling aggrieved, the petitioners have preferred the present writ petition. 8. I have heard Shri Sudesh Usgoankar, learned counsel for the petitioners and Shri V. G. P. Dukle, learned counsel for respondent no.1 and Shri S. D. Padiyar, learned counsel for respondent no.2. With their assistance, I have carefully perused the impugned order and gone through the paper book. 9. Shri Usgaonkar, learned counsel for the petitioners has submitted that the scope of power of the civil Court under Order 1 Rule 10 of the CPC, 1908, to add or delete parties is limited to ensure that real controversy in the suit is decided justly and effectively. The power under this provision cannot be used by Civil Court so as to widen the scope of the dispute between the parties, so submits the learned counsel for the petitioners. 10. According to him, the suit has been brought against respondent no.2 and it is founded upon an illegal action of respondent no. 2 in granting trade licence exclusively in the name of respondent no. 2. He submits that it was well within the knowledge of respondent no. 2 that the premises in respect of which trade licence has been granted, being jointly owned and possessed by the petitioner no.1 and respondent no.1, it was incumbent upon respondent no. 2 in granting trade licence exclusively in the name of respondent no. 2. He submits that it was well within the knowledge of respondent no. 2 that the premises in respect of which trade licence has been granted, being jointly owned and possessed by the petitioner no.1 and respondent no.1, it was incumbent upon respondent no. 2 to obtain consent of petitioner no.1 before issuing any trade licence exclusively in the name of respondent no.1. He submits that the information obtained by petitioner no.1 by using the provisions of Right to Information Act revealed that there was a noting made by respondent no. 2 dated 21.4.2006 in the file pertaining to the application of respondent no.1 seeking trade licence in his own name that licence may be issued subject to production of NOC from the co-owners and yet the licence was issued by respondent no.2 to respondent no.1 exclusively. He further submits that it is this act of respondent no.2 which has been challenged by the petitioners in Regular Civil Suit No. 40/2013/D and nothing more. Therefore, according to him there is absolutely no reason for respondent no.1 to intervene and try to say something in a suit the cause of action of which is entirely and exclusively based upon the illegal action done by respondent no. 2 in the matter. 11. Learned Counsel for the petitioners further submits that respondent no.1 may have a right in respect of the said property, but then, it would be for him to independently assert that by filing another suit. In fact, he further submits, the suit for partition of property is already pending between petitioner no.1 and respondent no.1 and in that suit respondent no.1 can very well agitate his alleged rights. He further submits that if respondent no. 2 wants to justify its action in the present suit, it can choose to examine respondent no.1 as its witness. 12. In sum and substance, the learned counsel for petitioners submits that by allowing impleadment of respondent no.1 as party defendant to the suit, the learned Civil Judge, has unnecessarily widened the scope of the suit which is not the purpose of Order 1 Rule 10 of CPC and therefore, the impugned order is bad in law and perverse. 13. 12. In sum and substance, the learned counsel for petitioners submits that by allowing impleadment of respondent no.1 as party defendant to the suit, the learned Civil Judge, has unnecessarily widened the scope of the suit which is not the purpose of Order 1 Rule 10 of CPC and therefore, the impugned order is bad in law and perverse. 13. Shri Dukle, learned counsel for respondent no.1 has submitted that it is well settled law that whenever presence of a party is necessary for determination of real controversy in the suit, it is the duty of the Court to ensure the presence of such a party in the suit pending before it. He further submits that the petitioners may be in the position of “dominus litus” and, as such, may have a right to decide as to who should and should not be a party to the suit, yet such position of the petitioners being plaintiffs cannot be construed to deprive the parties of the opportunity to submit their say before the Court, if their presence is necessary for determination of the real controversy in the suit and that any decision in the suit is likely to directly and substantially affect their rights. 14. He further submits that the test for ascertaining the presence of the party for determination of the real controversy involved in the suit is whether or not the party has direct interest in the suit and whether or not its right would be affected one way or the other by a decision in the suit. According to him, this test is well satisfied by the pleadings of the petitioners themselves and therefore, learned Civil Judge has rightly allowed the intervention application and directed addition of respondent no.1 as party defendant to the suit. 15. Shri Padiyar, learned counsel for respondent no.2 has adopted the arguments of learned counsel for respondent no.1 and agreed with all the submissions made by him on behalf of respondent no.1. He submits that there is nothing illegal about the order impugned herein and, therefore, this petition deserves to be dismissed. 16. Upon going through the impugned order, and the pleadings of rival parties, as are available in the paper book, I am of the view that there is great substance in arguments of learned counsel for respondent nos. He submits that there is nothing illegal about the order impugned herein and, therefore, this petition deserves to be dismissed. 16. Upon going through the impugned order, and the pleadings of rival parties, as are available in the paper book, I am of the view that there is great substance in arguments of learned counsel for respondent nos. 1 and 2 and no merit in the arguments of learned counsel for the petitioners. 17. There can be no quarrel about the principle that the power under Order 1 Rule 10 of C.P.C. must be exercised by a Civil Court in a manner as to advance the cause of justice by doing that which is a must for determination of real controversy involved in the suit. The power is not to be used just for the asking by any party. The party who seeks its impleadment in the suit must satisfy that its presence is necessary for determination of real controversy in the suit. The real test for ascertaining of the presence of the party would lie in answer to the question as to whether the party has interest in the suit and if the answer is yes, the presence of party would become necessary. Reason being that a party having interest in the lis is most likely to be affected directly and substantially in its rights by a decision in the suit. But, care has to be taken to ensure that interest of the party is real and direct, and is not based upon a claim which has no direct relation with the subject matter or cause of action of the suit or the reliefs claimed in the suit. If the interest is remote or indirect, the party would not be a necessary party and thus cannot be joined as party to the suit. 18. A plaintiff, no doubt, enjoys a status in the suit of what is called as “dominus litus' entitling him to decide as to who should be the party and who should not be. But such entitlement of the plaintiff is not absolute and certainly cannot be used to defeat the rights and interests of the other persons in relation to subject matter of the suit and the reliefs claimed therein. 19. In the case of Shaila Subrao Shetye Vs. But such entitlement of the plaintiff is not absolute and certainly cannot be used to defeat the rights and interests of the other persons in relation to subject matter of the suit and the reliefs claimed therein. 19. In the case of Shaila Subrao Shetye Vs. Kunda Madhukar Shetye, 2014(2) ALL MR 165, the learned Single Judge of this Court has taken a view that status of the plaintiffs being “dominus litus” is not absolute and it cannot be used to defeat the statutory rights of the other party to the suit and therefore, it could not be an impediment in the way of the Court considering an application either for addition or for deletion of the parties. This view fortifies the above view taken by me. 20. In the light of the principles set out hereinabove what has to be seen is as to whether or not the impugned order stands the scrutiny of law. 21. A perusal of the impugned order discloses that these very principles have been considered and applied to the facts of the instant case by learned Civil Judge. She has found that this is a case where in respondent no.1 has a direct interest in the subject matter and the reliefs claimed in the suit and that any order passed in the suit would directly affect respondent no.1. Learned Civil Judge has also found that the trade licence has been given by respondent no. 2 on the basis of documents submitted and information given by respondent no.1 and therefore in order to ascertain the genuineness and the veracity of the information and documents, the presence of respondent no.1 as party defendant would be necessary. 22. These reasons are based upon the pleadings of rival parties and logically arise from those pleadings. Therefore, it cannot be said that the impugned order is so perverse or so illogical as to warrant interference while exercising writ jurisdiction under Article 227 of the Constitution of India. 23. 22. These reasons are based upon the pleadings of rival parties and logically arise from those pleadings. Therefore, it cannot be said that the impugned order is so perverse or so illogical as to warrant interference while exercising writ jurisdiction under Article 227 of the Constitution of India. 23. Needless to mention here that the jurisdiction of the High Court under Article 227 of the Constitution of India is extra ordinary and therefore is required to be exercised only in exceptional cases where order impugned is perverse or absolutely illegal having been passed in clear violation of well settled principles of law or statutory provisions or is of such a nature that if it is allowed to stand, it would result in causing of grave miscarriage of justice. The order impugned herein is not an order which can be called as perverse or absolutely illegal or in violation of well established principles of law or in breach of statutory provisions or of fundamental rights or of such a nature as would cause great miscarriage of justice, unless quashed and set aside. 24. After all trade licence has been granted by respondent no.2 to respondent no.1 and the main relief claimed in the suit is of declaration of trade licence as null and void. If the suit is allowed it would result in cancellation of trade licence and thus would directly and substantially affect the right of respondent no.2 accrued to him after grant of trade licence rightly or wrongly. The record of respondent no. 2 may show the entire building to be jointly owned by these parties and it may also show that initially it had asked for a NOC from petitioner no.1. But then, it is also the case of respondent no.2 that it was on the basis of some information provided and some documents produced by respondent no.1 that it was considered by it that trade licence in respect of the premises in question could be issued to respondent no.1 in his exclusive name. It is the further say of respondent no.2 that the premises in question have been separately assessed to tax in the name of respondent no.1, which action has been called illegal by the petitioners. In paragraph 23 of the plaint, the petitioners have specifically alleged that respondent no.1 has fraudulently and by misrepresentation obtained trade licence from respondent no.1. It is the further say of respondent no.2 that the premises in question have been separately assessed to tax in the name of respondent no.1, which action has been called illegal by the petitioners. In paragraph 23 of the plaint, the petitioners have specifically alleged that respondent no.1 has fraudulently and by misrepresentation obtained trade licence from respondent no.1. On the basis of these allegations the relief of cancellation of trade licence has been prayed for. In such a situation, who else other than respondent no.1 could answer such allegations and explain the position. By giving evidence as witness for respondent no. 2, the respondent no.1 cannot adequately and effectively explain the facts and answer the charge against him. He may be required to lead evidence which he cannot do without his pleadings on record. He cannot do it in a partition suit having a different cause of action and respondent no. 2 being not a party thereto. He need not file a separate suit also to assert his rights when law permits him to do the same in this suit. 25. For these reasons, I find that the impugned order has been passed by learned Civil Judge by correctly applying the principles of law governing the discretion of Civil Court under Order 1 Rule 10 of CPC. I do not find any perversity or any illegality in the said order. There is no merit in the petition and it deserves to be dismissed. Petition stands dismissed with no order as to costs. 26. Rule is discharged. Petition stands dismissed.