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2015 DIGILAW 2442 (ALL)

Shanti Devi v. Brijraj Kishore Saxena

2015-08-17

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. The petitioner has approached this Court challenging the order dated 26.2.2014 passed by the Additional Civil Judge (Junior Division), Court No.1, Aligarh in Original Suit No. 664 of 2008 rejecting the application 69-Ka filed by the petitioner, seeking impleadment of Aligarh Development Authority, Aligarh1, as a party defendant to the suit and also for carrying out certain amendments in the plaint as well as the order dated 16.7.2015 passed by the revisional court dismissing the civil revision no. 150 of 2014. 2. The suit referred to above, has been filed by the petitioner against the first respondent for permanent prohibitory injunction, restraining him and his agents from causing any damage or from demolishing the eastern and northern wall of the plaintiff's house, detailed in schedule -A to the plaint. During the pendency of the suit, the petitioner sought amendment in the plaint and also impleadment of Aligarh Development Authority, Aligarh, as defendant no.2. It was alleged that after institution of the suit, on the instigation of the defendant, the Aligarh Development Authority, Aligarh issued notice dated 20.11.2012, 16.6.2012 and 18.7.2012 under Section 27 of the Uttar Pradesh Urban Planning & Development Act, 19732. It is alleged that these notices are totally illegal and collusive and consequently, the Authority was sought to be impleaded as a party defendant to the suit. 3. The application was opposed not only by the defendant but also by the Authority by filing objections. The Authority raised objections, stating that the notices have been issued by it in exercise of statutory power under Section 27 of the Act. It was pointed out that the Authority is not a necessary party to the lis involved in the suit. 4. The trial court by order dated 26.2.2014, rejected the application filed by the plaintiff-petitioner. The order has been affirmed in revision. 5. Learned counsel for the petitioner has placed reliance on a communication by the Secretary, Aligarh Development Authority, Aligarh to the Commissioner, Aligarh Division dated 26.6.2009, wherein the Secretary mentioned that the complaint filed by Brijraj Kishore Saxena, (defendant in the suit) is motivated. It has been noted in the said communication that the house is constructed in the old abadi area which is less than 100 sq. meters and therefore, no further action is required in the matter. It has been noted in the said communication that the house is constructed in the old abadi area which is less than 100 sq. meters and therefore, no further action is required in the matter. A further reliance has been placed on a notice dated 16.6.2012, wherein it has been mentioned that the house is claimed to be an old one. It is noted therein that the petitioner should produce evidence in this regard or file a plan for compounding. It is alleged that all these proceedings have been initiated by the Authority at the instigation of the defendant and therefore amendment was sought in the plaint and the Authority was sought to be impleaded as a party defendant. 6. The trial court in the impugned order has held that in seeking impleadment of the Authority, the petitioner has questioned the proceedings initiated by the Authority, in exercise of its statutory power under Section 27 of the Act. It has been noted that in case the petitioner is aggrieved by such proceedings, she has the remedy of filing appeal under section 27(4) of the Act. It has further been noted that the dispute in the suit is limited to the eastern and northern wall, which according to the plaint case, is under threat of being demolished by the defendant. On the other hand, it is noticeable that the proceedings which have been initiated by the Authority are in respect of constructions on the ground floor and the first floor. In such view of the matter, the trial court has held that the Authority is not a necessary party to the suit, nor the amendment which has been sought deserves to be allowed. 7. After considering the reasonings given by the the trial court in its impugned order, this Court is of the opinion that the application moved by the petitioner seeking impleadment of Aligarh Development Authority, Aligarh and for carrying out certain amendment in the plaint in reference to the notices issued by the Authority, has been rejected for valid grounds. The controversy which is sought to raised by the petitioner by seeking impleadment of Aligarh Development Authority Aligarh, would enlarge the scope of the suit and such exercise cannot be permitted where the dispute in the suit is confined to the eastern and northern walls of the house, between the private parties. 8. The controversy which is sought to raised by the petitioner by seeking impleadment of Aligarh Development Authority Aligarh, would enlarge the scope of the suit and such exercise cannot be permitted where the dispute in the suit is confined to the eastern and northern walls of the house, between the private parties. 8. Learned counsel for the petitioner has placed reliance on the judgement of the Supreme Court in case of Savitri Devi vs. District Judge, Gorakhpur3 , wherein this Court has held that the transferee pendente lite is a necessary party to the proceedings. He has also placed reliance on a judgement of Karnataka High Court in case of Munivenkatamma vs. Ramaiah4. 9. I have perused the aforesaid judgements and I am of the view that the judgments relied upon by the petitioner are not applicable to the facts of the instant case. 10. The petition lacks merit and is dismissed.