J. Venkatesh vs The Commissioner Bruhath Bangalore Mahanagara Palike and Others

B. Manohar, J.—Petitioner is the plaintiff in O.S. No. 5361/2012 on the file of the 27th Additional City Civil Judge, Bangalore. Being aggrieved by the order dated 15-11-2012 allowing I.A. No. 3 filed under Order I Rule 10 of CPC impleading the applicant as second defendant, the petitioner has filed this writ petition.

The petitioner filed a suit against the first respondent herein seeking for perpetual injunction restraining the defendant, its agents, men or anybody under or through him from demolishing any portion of the suit schedule building or interfering with the plaintiffs peaceful possession and for other reliefs.

In the suit, the second respondent herein had filed an application under Order I Rule 10 of CPC seeking to implead her as the second defendant and contended that she has got interest over the suit schedule property. She also contended that without following the procedure prescribed under the Rules, for the alleged due, the property has been brought to sale. The right of applicant over the property is made known to general public giving advertisement in "SANJEVANI" newspaper. The auction sale made by the authorities is not binding on the impleading applicant and she continues to be the owner of the property. Since the applicant has got some interest, she is a necessary party for adjudication of the dispute, she sought for impleading her as second defendant. The Trial Court by its order impugned, allowed the said application and permitted the impleading applicant to come on record as second defendant. Being aggrieved by the said order, the plaintiff has filed this writ petition.

Sri. P.R. Ramesh, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. In the public auction conducted on 11-12-2008, the petitioner was the highest bidder and purchased the suit schedule property. However, while constructing the building, the first respondent interfered with the suit schedule property and tried to demolish a portion of the building. The petitioner filed a suit seeking perpetual injunction against the first respondent herein and for other reliefs. In the said suit, the second was not arrayed as party since she was not a necessary and proper party and no relief has been sought against her. The Trial Court without appreciating the contention of the petitioner allowed the application, which is contrary to law and sought for setting aside order by allowing the writ petition. Though the 2nd respondent served with the Notice. She remain unrepresented. Hence, heard the learned counsel for petitioner and first respondent. The records further disclose that after purchase of the property in the public auction, the first defendant was interfering with the possession of the plaintiff and they were trying to demolish a portion of the building. In view of that, the plaintiff filed a suit for perpetual injunction and also for other reliefs. In the said suit, the second defendant filed an application to implead her as second defendant and she claims, she has some interest over the suit schedule property since she is the owner of the property. It is her contention that without following the due procedure under law, only for the alleged due, the property was brought to sale and even after sale, she continues to be the owner of the said property, that was made known to the general public by giving publication in the newspaper. Hence, she is necessary and proper party for adjudication of the dispute. In the suit filed by the plaintiff, the relief sought is only against the Corporation for their action of demolition of the building. No relief has been sought against the second defendant. For adjudication of the dispute between the petitioner and the first respondent, the second respondent is not a proper and necessary party. If the proper and necessary parties are not made parties in the proceedings and in their absence the court cannot effectively adjudicate the dispute, then only those persons can be impleaded as parties.

In the instant case, no relief has been sought against the second defendant. She is not a necessary party to the adjudication of the dispute between the petitioner and the first respondent, the second respondent is not a proper and necessary party. The Trial Court without examining the intent and purport of Order I Rule 10 of CPC allowed the application and the said order cannot be sustainable in law. Accordingly, I pass the following:

ORDER

"The writ petition is allowed. The order dated 15-11-2012 made on I.A. No. 3 is set aside. The second respondent is not a proper and necessary party for adjudication."