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2015 DIGILAW 11 (KAR)

K. A. Mathew v. S. Ramesh

2015-01-02

B.V.NAGARATHNA

body2015
ORDER : B.V. Nagarathna, J. 1. Petitioner has assailed order dated 14.3.2014 passed in Appeal No. 723/2010 by the Karnataka Appellate Tribunal (hereinafter referred to as 'Tribunal') (Annexure-A) to the writ petitions. Briefly stated the facts are that petitioners had complained against the first respondent with regard to construction put up by the latter on his property. On that complaint, the second respondent-B.B.M.P., passed an order under sub-section (3) of Section 321 of the Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as 'Act') ordering demolishing of a portion of the building which was contrary to the plan of the building and the bye-laws. Being aggrieved by that order, first respondent has preferred Appeal No. 723/2010 before the Tribunal. During the pendency of the appeal, petitioner filed an application under Order I, Rule 10 of the Code of Civil Procedure, seeking impleadment as respondent in that appeal. The Tribunal by the impugned order has dismissed that application. Being aggrieved by that order, present writ petitions have been preferred. 2. I have heard learned counsel for petitioner and perused the material on record. 3. Petitioner's counsel submits that it is at the instance of the petitioner and on the complaint made by him that the respondent B.B.M.P. initiated steps and passed an order under sub-section (3) of Section 321 of the Act with regard to demolition of a portion of the building put up by respondent No. 1 which is in violation of the building bye-laws and other provisions of the Act and Rules made therein. That order has not been given effect to on account of the stay granted by the Tribunal. He would submit that respondent -B.B.M.P has been slack in not proceeding with the matter before the Tribunal and therefore petitioner intends to implead himself in the appellate proceedings, so that the order of the B.B.M.P is given effect to. Such impleadment is not permissible in law, as the lis is essentially between the first respondent and the second respondent-B.B.J.M.P. It is against the second respondent's order that the first respondent has preferred an appeal. The Tribunal would have to adjudicate the correctness or otherwise of the order passed by the respondent- B.B.M.P. The petitioner herein though may be original complainant, at this stage cannot implead himself in the proceeding. 4. In this context, it would be of relevance to refer to two decisions. The Tribunal would have to adjudicate the correctness or otherwise of the order passed by the respondent- B.B.M.P. The petitioner herein though may be original complainant, at this stage cannot implead himself in the proceeding. 4. In this context, it would be of relevance to refer to two decisions. In the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others [ (1992) 2 SCC 524 ] : (1992 AIR SCW 846), it was held that the addition of a necessary party by Court is a judicial discretion, which has to be exercised having regard to the facts and circumstances of the case. In the said decision, it was also held that a 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 given on some of the questions involved; that would only make him a necessary witness. It is not merely that he has interest in the correct solution of some question involved and has thought of relevant arguments to be advanced. The only reason which makes it necessary to make a person a party to an action is 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. A clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. 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. The rule does not contemplate joining as a defendant a person whose only object is to prosecute his own cause of action. 5. The rule does not contemplate joining as a defendant a person whose only object is to prosecute his own cause of action. 5. The said decision has been followed by this Court in W.P. No. 34751/2010 disposed of on 09.11.2010 wherein on similar facts and circumstances, this Court held that the petitioner therein was only a neighbour of the first respondent plaintiff. He was not the owner of any portion of the property, which had been encroached and under the circumstances, his presence was considered to be unnecessary. The said decisions are squarely applicable to the facts of the present case. Under the circumstances, the order passed by the Tribunal does not call for any interference and hence writ petition is dismissed. 6. So far as the apprehension of the petitioner that the Respondent-BBMP would not place all the facts before the Tribunal, it is needless to observe that the said Respondent has a duty to place all me relevant records and facts before the Tribunal, if it is interested in assisting the Tribunal in upholding its orders passed under Section 321 of the Act. The main apprehension of the petitioner that such a thing would not be done by the Respondent- BBMP cannot be a reason to permit the petitioners to implead themselves in the appeal pending before the Appellate Tribunal. Therefore, the Tribunal was justified in dismissing the application for impleadment. The impugned order does not call for any interference in this writ petition. 7. In that view of the matter, the Tribunal was right in dismissing the application filed by the petitioner. The impugned order would not call for any interference. There is no merit in the writ petitions. Writ petitions are hence dismissed.