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2015 DIGILAW 118 (KAR)

CHANDRAPPA v. GARUDACHALA ASSOCIATES PRIVATE LTD

2015-01-27

B.V.NAGARATHNA

body2015
ORDER 1. Petitioner has assailed order dated 16.10.2014 passed in Appeal No.1138/2013 by the Karnataka Appellate Tribunal, Bangalore (AnnexureJ to the writ petition). By that order, application filed by the petitioner under Order1 Rule 10(2) of the Code of Civil Procedure has been dismissed. 2. Briefly stated the facts are that petitioner had made a complaint against respondent no.1 with regard to construction that has been put up by the said respondent on property bearing No.4/3, Mahadevapura Village, Bangalore East. On the said complaint, the second respondent had initiated action under Section 321 of the Karnataka Municipal Corporation, Act (‘Act’ for short), 1976. Initially a provisional order was passed under sub section (1) of Section 321 of the Act. Thereafter, confirmatory order under sub section (3) of Section 321 of the Act was passed on 17.10.2013. That order is challenged by the first respondent before the Tribunal. During the pendency of the appeal before the Tribunal, petitioner sought impleadment in the appellate proceedings. By the impugned order, the Tribunal has dismissed that application for impleadment. Being aggrieved by that order, petitioner has preferred this writ petition. 3. I have heard learned counsel for petitioner. He contended that the first respondent has made serious deviations in the construction that has been put up on the property in question and that it is on the complaint made by the petitioner, action was initiated by respondent no.2 pursuant to the direction issued by this Court in Writ Petition No.45446/2013 and thereafter, provisional and confirmatory orders have been passed by the second respondent. The matter is pending before the Tribunal and the order passed by the B.B.M.P has not been implemented. It is in this context, petitioner sought impleadment in the appellate proceedings. The Tribunal ought to have allowed the application, is the submission of the petitioner’s counsel. 4. I have considered this submission in light of the material on record and the order passed by the Tribunal. 5. Essentially, the lis is between the first and second respondents. The appeal filed by the first respondent herein, is with regard to the order passed by the second respondent and its officers. In that view of the matter, the Tribunal was right in not permitting the petitioner to implead himself as party in the appellate proceedings. 5. Essentially, the lis is between the first and second respondents. The appeal filed by the first respondent herein, is with regard to the order passed by the second respondent and its officers. In that view of the matter, the Tribunal was right in not permitting the petitioner to implead himself as party in the appellate proceedings. It may be that the orders assailed before the Tribunal were passed by the second respondent and its officers at the instance of the petitioner, but that would not give a right to the petitioner to participate in the appellate proceedings pending before the Tribunal. Therefore, the impugned order would not call for any interference. 6. In this context. it would be of relevance to refer to two decisions. In the case of Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and others [ (1992) 2 SCC 524 ], it was held that the addition of a necessary party by a 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. 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. 7.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 liable to be dismissed. 8. In the result, the writ petition is dismissed.