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2023 DIGILAW 1006 (KAR)

Meenakshi v. Shivarudrappa

2023-08-23

VIJAYKUMAR A.PATIL

body2023
JUDGMENT 1. This petition is filed under Article 227 of the Constitution of India, seeking prayer to quash the order dtd. 27/1/2023 passed on I.A.No.2 dtd. 17/1/2023 in M.A.No.10/2023 on the file of the IV Additional District and Sessions Judge, Mysuru. 2. Brief facts giving rise to filing of this petition is that the petitioner herein has filed an application under Order 1 Rule 10(2) read with Sec. 151 of CPC, seeking prayer to implead her as respondent No.4 in M.A.No.10/2023 filed by respondent No.1 herein. The said application came to be rejected by the Appellate Court. Being aggrieved by the same, present writ petition is filed. 3. The petitioner claims that she is the absolute owner of the property bearing Municipal Door No.811/F9 measuring East to West 81/2 feet and North to South 60 feet situated at 10th Cross, Ramanuja Road, Khille Mohalla, Mysuru and respondent No.1 herein is the owner of the adjacent property. It is averred that Respondent No.1 has put up construction in his property by demolishing the common wall existing between the petitioner and respondent No.1 property by causing damage to the common wall. Hence, the petitioner herein was compelled to file a complaint with respondent No.2-The Commissioner, Mysuru City Corporation, Mysuru alleging that the respondent No.2 is putting up illegal construction. It is further averred that when respondent No.2-Corporation failed to take action on the representation submitted by the petitioner, the petitioner has filed O.S.No.1430/2021 seeking prayer to declare that the Wall existing in between the house of petitioner and respondent No.1 herein on the eastern side of the petitioner's house is a common wall for the house of the petitioner and respondent No.1 and further prayer to declare that the defendant/respondent No.1 has no right of whatsoever to cause any damage to the said Wall. The said suit ended in compromise. In the said compromise, respondent No.1- Judgment Debtor has agreed that he would restore the said common wall to its original position by taking necessary repair works, however the respondent No.1-Judgment Debtor in O.S.No.1430/2021 has failed to adhere to terms of compromise, which has compelled the petitioner to file Execution Petition in Ex.No.125/2022. 4. During the pendency of execution petition, respondent No.2-Corporation has issued notice and subsequently passed orders dtd. 4. During the pendency of execution petition, respondent No.2-Corporation has issued notice and subsequently passed orders dtd. 5/9/2022 and 3/1/2023 under Sec. 321(3) of the Karnataka Municipal Corporations Act, 1976 (for short 'KMC Act'), directing respondent No.1 to bring the construction in conformity with the sanction plan. Respondent No.1 has filed an appeal in M.A.No.10/2023 before the District Court, assailing the confirmation order dtd. 21/11/2022 passed by respondent No.2 Corporation. The petitioner herein has filed an application under Order 1 Rule 10(2) read with Sec. 151 of CPC seeking herself to implead as respondent No.4 in the said appeal. The said application was rejected by the Appellate Court. Being aggrieved by the same, the petitioner is before this Court. 5. Smt.M.R.Mamatha, learned counsel appearing for the petitioner submits that the Appellate Court has committed grave error in rejecting the application filed by the petitioner seeking to implead herself as a party to the proceedings in M.A.No.10/2023 as it is the petitioner who has filed the complaint before respondent No.2-Corporation about putting up of illegal construction by respondent No.1 and on the basis of her complaint, the Corporation has issued notice and subsequently passed an order of confirmation. Hence, the petitioner is a proper and necessary party in the appeal as her property rights are involved. It is submitted that respondent No.1 herein was the defendant in O.S.No.1430/2021 who has agreed in the compromise that he would restore the common wall to its original position and without doing so, he has started putting up illegal construction contrary to the sanction plan and when Corporation has taken action against him without making the petitioner herein as a party has filed appeal, assailing the confirmation order passed by respondent No.2. Hence, the petition is proper and necessary party in the appeal. It is submitted that the Appellate Court has not considered these aspects while rejecting the application. It is further submitted that the petitioner is a proper and necessary party in the above appeal as her rights which have been culminated in the compromise decree would be affected if she is not made a party to the proceedings pending before the Appellate Court. Hence, she seeks to allow the petition. 6. Though the respondents are served, remained absent. Hence, they are placed ex-parte. 7. I have heard the learned counsel for the petitioner and perused the material on record. Hence, she seeks to allow the petition. 6. Though the respondents are served, remained absent. Hence, they are placed ex-parte. 7. I have heard the learned counsel for the petitioner and perused the material on record. It is not in dispute that the petitioner herein has filed O.S.No.1430/2021 against respondent No.1 herein seeking prayer to declare that the Wall existing between the house of plaintiff i.e., petitioner herein and respondent No.1 on the eastern side of the petitioner's house is a common wall for the house of the petitioner and respondent No.1 and further prayer to declare that respondent No.1 has no right whatsoever to cause any damage to the said Wall and other prayers. It is also not in dispute that the said suit ended in compromise wherein, respondent No.1 has agreed that he would restore the said common wall to its original position by taking necessary repair works. After the disposal of said suit, the respondent No.1 has failed to adhere to the terms of compromise, which had compelled the petitioner herein to file Execution Petition in Ex.No.125/2022. It is also not in dispute that the petitioner has filed complaint before respondent No.2- Corporation, alleging that respondent No.1 is putting up construction contrary to the sanction plan and based on the said complaint, respondent No.2 has initiated proceedings against respondent No.1 and passed order under Sec. 321(3) of the KMC Act, which was assailed by respondent No.1 appeal. Admittedly, respondent No.1 has challenged the order dtd. 21/11/2022 passed by respondent No.2 under Sec. 321(3) of the KMC Act in M.A.No.10/2023 without making the petitioner as a party to the proceedings. 8. The very initiation of the proceedings under Sec. 321(3) of the KMC Act is at the instance of the petitioner herein. The petitioner herein is a beneficiary under the compromise decree passed in O.S.No.1430/2021. The respondent No.1 was the Judgment Debtor in the said suit, has agreed that he would restore the common wall between the house of petitioner and respondent No.1 to its original position. In the said compromise decree, certain rights have been accrued in favour of the petitioner, in other words, respondent No.1 has agreed that he would restore the common wall between the petitioner and respondent No.1 to its original position and the said decree has attained finality and execution proceedings are pending. In the said compromise decree, certain rights have been accrued in favour of the petitioner, in other words, respondent No.1 has agreed that he would restore the common wall between the petitioner and respondent No.1 to its original position and the said decree has attained finality and execution proceedings are pending. When things stood thus, any order passed in pending appeal would definitely affect the rights of the petitioner. The petitioner is party to the disputes relating to the subject matter of appeal to an extent of her rights recognized in decree. Hence, to determine the dispute in appeal, the presence of the petitioner is necessary to adjudicate the issue involved and to avoid further proceedings. Hence, the petitioner herein is a proper and necessary party to the proceedings initiated by respondent No.1. If the application for impleading is allowed, no harm or prejudice would be caused to respondent No.1 and if rejected it would lead to multiplicity of proceedings between the parties on same subject matter. For the reasons recorded supra, writ petition is allowed. The impugned order dtd. 27/1/2023 passed in M.A.No.10/2023 is set aside. I.A.No.2 dtd. 17/1/2023 filed by the petitioner herein is allowed. Ordered accordingly. No order to costs.