Hiranand and Others vs T.M. Kambati and Others

P. Venkatarama Reddi, J.—This revision petition is filed against the order passed by the XI Assistant Judge, City Civil Court in LA. No. 1080 of 1995 allowing the application of respondents 1 and 2 herein to implead them as defendants 3 and 4 in the suit-O.S.No. 810 of 1995. That suit was filed by the petitioners herein against Municipal Corporation and the Original Owner (3rd Respondent herein) seeking a declaration that the revised lay out sanctioned in the year 1970 is not valid and binding on them and for injunction restraining the Corporation from interfering with the peaceful possession and enjoyment of the building situate in an area ad-measuring 177 sq. yards on the Northern side Of Plot No. 18 in Penderghast Road, Secunderabad.

There is no dispute that the respondents 1 and 2 are neighbours of Plot No. 18. It is the case of respondents 1 and 2 that the building was unauthorisedly constructed by the plaintiffs in Plot No. 18 which was meant for parking. It is also the case of the respondents 1 and 2 that taking advantage of the temporary injunction granted in O.S. No. 596 of 1991 the petitioners completed the construction of the building resting the same on the compound wall of respondents 1 and 2. It is not in dispute that the injunction was vacated subsequently and the suit itself was dismissed for default. It is further stated that after dismissal of the suit, pursuant to an application filed by respondents 1 and 2, the Court directed the Municipal Corporation to take appropriate action to bring the structures to status-quo-ante. In the affidavit filed in support of the I.A., the respondents have referred to at least three suits which were filed against Municipal Corporation seeking for declaration that the plaintiffs are owners of the plot of land in question and also praying for a permanent injunction. In all those suits, admittedly, the respondents 1 and 2 were impleaded as parties. The learned Assistant Judge felt that in view of the earlier litigation and more especially the order passed in I. A. 794 of 1995 in O.S. No. 596 of 1991 (on the file of the I Assistant Judge) directing maintenance of status quo ante with regard to the structure put up by the petitioners which according to the respondents 1 & 2 is resting on their compound wall, the respondents 1 and 2 are necessary and proper parties to the suit. I do not think that any illegality much less an error of jurisdiction has been committed by the trial Court in allowing the impleading application filed by the respondents 1 and 2.

The contention of the learned Counsel for petitioners is that no relief is sought for against respondents 1 and 2 and in the suit filed against the Corporation and the original owner, the respondents 1 and 2 have no say. But as observed by the learned Assistant Judge, the injunction obtained in the present suit against the corporation may affect the interests of respondents 1 and 2 in the sense that it might come in the way of execution of the Order passed in I.A. No. 794 of 1995 in O.S. No. 596 of 1991. That apart, when the validity or the lay out in which the plot in question is earmarked for a common purpose is being challenged, it cannot be said that the residents of the locality have no locus standi to implead themselves.

The Division Bench decision of this Court in C.R.P. No. 4500 of 1982, dated 25-2-1983 1983 (1) ALT 78 supports the contention of respondents 1 and 2 that the neighbours aggrieved by the unauthorised constructions can implead themselves in the suit filed against the Municipal Corporation.

The learned Counsel for the petitioner cited a decision of the Supreme Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, . In that case, the Supreme Court held that in a suit filed by a dealer of Hindustan Petroleum Corporation against the Municipal Corporation questioning the notice of demolition of two chattels on the terrace of the premises, the second respondent (Hindustan Petroleum Corporation) is not a necessary or proper party. It was observed that the Hindustan petroleum Corporation does not have any legal interest in the subject-matter inasmuch as the demolition notice was not in respect of the service station but in relation to the two chattels said to have been erected by the dealer-appellant unauthorisedly. It was observed that the second respondent had no direct interest in the subject-matter of the litigation i.e., the chattels and the demolition of the same in pursuance of the notice issued by the Municipal Corporation. The Supreme Court pointed out that if the offending structure was erected contrary to the terms of the agreement, that was a different issue. The Supreme Court pointed out that a clear distinction has to be drawn between the suits relating to property and those in which a declaration as regards status or legal character is sought for. The Supreme Court then observed:

"The only reason which makes it necessary to make a person a party to an1 action is so 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. 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. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action."

The Supreme Court ultimately held that the 2nd respondent had no direct interest in the subject matter of the litigation and the addition of the respondent would result in a new cause of action and causes serious prejudice to the appellant. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule, it was observed. The ratio of the decision of the Supreme Court in the aforementioned case does not, in my view, come to the rescue of the petitioners. There is a world of difference between the facts which presented themselves for consideration in the case dealt with by the Supreme Court and the case with which we are concerned. As rightly found by the trial Court, the respondents 1 and 2 will be directly affected if the declaration and injunction as prayed for by the petitioners/plaintiffs is granted. It might come in the way of execution of the order passed in LA. No. 794 of 1994 in O.S. No. 596 of 1991. Moreover the immediate neighbour is possessed of sufficient interest to see that the land kept for common purpose is not diverted for any other purpose.

The learned Counsel for the petitioners also relied upon the judgment of Rajasthan High Court in Girdhari Lal Vs. Nagar Parishad and Another, . It was the admitted case of the party who filed the impleading application that the land belonged to Municipality. He did not have a direct or substantial interest over the land nor is there any finding that he was affected by the disputed construction. That case cannot therefore be pressed into service by the petitioners.

I, therefore, see no merits in the CRP, and it is accordingly dismissed.

Nothing observed herein shall be considered as an expression of any view on the merits of the dispute in the suit.