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2023 DIGILAW 528 (RAJ)

Ram Prasad Avasthi v. Ram Babu Sharma

2023-02-15

MAHENDAR KUMAR GOYAL

body2023
ORDER : Mr. Mahendar Kumar Goyal, J. - This civil second appeal is preferred against the judgment and decree dated 23.05.2019 passed by learned Additional District Judge No.2, Ajmer (for brevity, "the learned appellate Court") in Civil Appeal No.4/2015 (63/2015) whereby, while dismissing the appeal, the judgment dated 25.04.2015 passed by learned Civil Judge (South), Ajmer (for brevity, "the learned trial Court") decreeing the suit filed by the respondent/plaintiff (for brevity, "the plaintiff") for mandatory and permanent injunction, has been affirmed. 2. The relevant facts in brief are that the plaintiff filed a suit against the appellants/defendants (for brevity, "the defendants") stating therein that they have raised construction in the setback area situated towards western side of his house meant to be left open. It was further averred that the defendants have raised the construction without any permission or approval of the building plan from the Municipal Council, Ajmer. Therefore, a decree of mandatory and permanent injunction was prayed for. The defendants in their written statement denied construction covering setback. 3. On the basis of the pleadings of the parties, learned trial Court framed four issues. After recording evidence of the respective parties, the learned trial Court decreed the suit vide judgment dated 25.04.2015 which was initially affirmed by the learned appellate Court vide judgment dated 29.10.2015; but, the matter was remanded back to the learned appellate Court by this Court vide order dated 26.02.2019 in S.B. Civil Second Appeal No.522/2015 with a direction to decide the appeal afresh taking into consideration the application filed by the defendants seeking impleadment of the Municipal Corporation, Ajmer as party-defendant. After remand, the learned appellate Court again dismissed the appeal vide judgment and decree dated 23.05.2019. 4. Assailing the impugned judgment and decree, learned counsel for the defendants submits that the learned Court erred in failing to appreciate that Municipal Corporation, Ajmer was necessary party to the litigation inasmuch as the learned trial Court has decided the issue no.1 in favour of the plaintiff relying exclusively upon the notice dated 08.05.2007 (Ex.1) issued by it. He submits that to demonstrate that the notice was issued by the Municipal Corporation, Ajmer on a complaint made by the plaintiff, its presence was necessary in the suit. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 23.05.2019 be quashed and set aside and the suit be dismissed. 5. He submits that to demonstrate that the notice was issued by the Municipal Corporation, Ajmer on a complaint made by the plaintiff, its presence was necessary in the suit. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 23.05.2019 be quashed and set aside and the suit be dismissed. 5. Per contra, learned counsel for the plaintiff would submit that the learned appellate Court did not err in rejecting the application filed by the defendants under Order 1, Rule 10 CPC seeking impleadment of the Municipal Corporation, Ajmer as a party-defendant. He submits that there are concurrent findings of fact which require no interference by this Court in its appellate jurisdiction under section 100 CPC. He, therefore, prays for dismissal of the second appeal. 6. Heard. Considered. 7. The learned appellate Court has rejected the prayer of the defendants for impleadment of the Municipal Corporation, Ajmer as defendant inasmuch as after appreciating the material on record and looking to the nature of the suit, it did not find the same either to be necessary or proper party. This Court has gone through the judgment dated 25.04.2015 passed by the learned trial Court and finds that the findings on the issue no.1 have been returned in favour of the plaintiff appreciating the entire oral as also the documentary evidence on record and not on the basis of the notice dated 08.05.2007 as contended by the learned counsel for the appellants. The learned trial Court has recorded a finding that the defendants have admitted receipt of the notice dated 08.05.2007 and they did not produce any building plan approved by the competent authority for raising construction. It has also been held that the defendants have admitted that in the approved plan by the then Urban Improvement Trust, there was a provision of four feet setback towards western and southern side of their plot. In view thereof, contention of the learned counsel for the defendants that findings of the learned trial Court vide issue no.1 are based exclusively on the notice dated 08.05.2007 does not merit acceptance. In view thereof, contention of the learned counsel for the defendants that findings of the learned trial Court vide issue no.1 are based exclusively on the notice dated 08.05.2007 does not merit acceptance. From the material on record, this Court is not satisfied that presence of the Municipal Corporation, Ajmer was necessary for just and effective disposal of the controversy involved in the matter which was confined to as to whether the defendants have raised construction covering the setback in violation of norms which has been found to be proved by the learned appellate Court as also by the learned trial Court from the cogent evidence on record. Learned counsel for the appellants has failed to point out any perversity in the concurrent findings of facts. 8. Since, no substantial question of law is involved in this civil second appeal, the same is dismissed accordingly.