Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 30 (CAL)

Annapurna Patra v. Kodalia No. 1, Gram Panchayat

2018-01-05

HARISH TANDON

body2018
JUDGMENT : 1. This revisional application is directed against an order/judgment dated 24th March 2017 passed by the learned District Judge, Hooghly in Civil Revision No. 100029 of 2014, by which the revisional application was dismissed as the order impugned therein is hit by the proviso to Section 115 of the Code of Civil Procedure thereby affirming an order no. 52 dated 4th July 2014 passed by the learned Civil Judge (Junior Division), Additional Court, Hooghly in Title Suit No. 71 of 2013. 2. The plaintiff/petitioner filed the said title suit for declaration that the notice dated 25th March 2008 issued by the opposite party no. 1 for demolition of a portion of the ‘A’ schedule property is illegal, inoperative and not binding upon her and further declaration that the said notice has no legal force and is violative of the provisions of the West Bengal Panchayat Act, 1973 and the rules framed there under. 3. The plaint case proceeds that the plaintiff/petitioner after purchasing the said property from the erstwhile owner applied before the Gram Panchayat for sanction of the building plan and further deposited the requisite fees. The plan was sanctioned on 14th October 1988 and according to the petitioner, she constructed the house after taking loan from the nationalized bank. 4. A Notice dated 20th November 2006 was issued upon her intimating that a special meeting would be held on 4th December 2006 as an allegation is made by the opposite party no. 2 against the petitioner on illegal and unauthorized construction. The petitioner further averred that her husband attended the said meeting and the opposite party no. 1 was apprised of the sanctioning of the plan and the construction is made in conformity therewith. Subsequently, by the impugned notice, the opposite party no. 1 directed demolition of the portion of the constructed house, which, according to it, is unauthorized and illegal. 5. In course of the proceeding, an application was taken out by the opposite party no. 1 that the opposite party no. 2 is a necessary and proper party and, therefore, he is required to be impleaded as party defendant therein. The trial court allowed the said application, which was challenged before the learned District Judge, Hooghly under Section 115A of the Code. 6. 1 that the opposite party no. 2 is a necessary and proper party and, therefore, he is required to be impleaded as party defendant therein. The trial court allowed the said application, which was challenged before the learned District Judge, Hooghly under Section 115A of the Code. 6. This Court does not find any infirmity and/or illegality in the order of the learned District Judge, Hooghly as the order disposing of the application under Order I Rule 10(2) of the Code does not satisfy the ingredients/conditions enshrined in proviso inserted by the Amendment Act, 2002 to Section 115 of the Code. Since the challenge is also made to a parent order, by which the impleadment was allowed by the trial court, this Court permits the petitioner to argue on the legality of the said order. 7. According to the learned advocate for the petitioner, since the notice/order passed by the opposite party no. 1 is the subject matter of the suit, the opposite party no. 2 is neither a necessary nor a property party. 8. I am not impressed with the aforesaid submission for the reason that the petitioner herself averred in paragraph 9 of the plaint that on the basis of a complaint lodged by the opposite party no. 2, the opposite party no. 1 initiated a proceeding for demolition of the unauthorized construction, which culminated into the notice/order, challenged in the said suit. 9. It is axiomatic to record that if a proceeding originated on the basis of a complaint lodged by the opposite party no. 2, he is a necessary and proper party and should have been arraigned as party defendant in the said suit, without whom no adjudication can be made. It is further evident from the averments made in paragraph 9 of the plaint, where the name of the opposite parties has been expressly recorded therein. 10. A necessary party is one without whose presence the court cannot effectively and completely adjudicate the disputes in the suit. On the other hand, a proper party is one whose presence is necessary for complete and effective adjudication of the suit. 11. This Court, therefore, finds that the opposite party no. 2 satisfies such ingredients and there is no illegality and/or infirmity in the order no. 52 dated 4th July 2017 passed by the trial court to implead him as additional defendant in the said suit. 12. 11. This Court, therefore, finds that the opposite party no. 2 satisfies such ingredients and there is no illegality and/or infirmity in the order no. 52 dated 4th July 2017 passed by the trial court to implead him as additional defendant in the said suit. 12. The revisional application is devoid of merit and the same is hereby dismissed. There shall, however, be no order as to costs.