S. Krishnaveni vs D. Rajammal and Others

The petitioner has filed this petition, aggrieved by the order of impleading the respondents as defendants in the suit.

The petitioner filed the suit O.S. No. 7583 of 2000 for a declaration that the notice dated 9.8.2000 issued by the 4th respondent herein was

invalid, for a consequential injunction restraining the 4th respondent from demolishing the suit property and for a declaration that the notice dated

27.10.2000 issued by the third respondent was invalid and for the similar relief of consequential injunction as referred to above. The respondents 3

and 4 were originally the only defendants in the suit. The petitioner and the respondents 1 and 2 have a long history of litigation. Originally there

was a lease agreement dated 22.5.1985 between the petitioner and one Babu Pillai and his brother Ranga Pillai. They granted a lease in favour of

the petitioner in respect of the suit property. As per Clause 1 of the agreement the petitioner was given permission to put up construction in the suit

property and carry on her hotel business.

The respondents 1 and 2 herein are the wife and daughter of the said Babu Pillai; the respondents 5 and 6 herein are the sons of Babu Pillai and

Ranga Pillai, the second lessor referred to above. In 1998, an order was passed in R.C.O.P. No. 1616 of 1996 filed by the aforesaid Babu Pillai

against the petitioner herein. In the said R.C.O.P. an application was filed by the petitioner claiming that the main R.C.O.P. was not maintainable.

This application was allowed by the learned Rent Controller holding that the lease was only in respect of the vacant land and that the landlord had

no right in respect of the building. This order has been filed as a document in the typed set of papers. W.P. No. 13400 of 2000 was filed on

1.9.2000 by the respondents 1 and 2 herein, against the petitioner and the respondents 3, 4 and others. The relief sought for was for a writ of

mandamus directing the respondents 3 and 4 to demolish the illegal structure in the suit property constructed without any statutory permission. The

writ petition itself was disposed of at the time of admission by this Court directing the respondents, viz., the statutory authorities to take immediate

steps on the representation made by the respondents 1 and 2 herein, after giving reasonable opportunity to the petitioner. Subsequently, this suit

has been filed for the relief set out in the earlier paragraph. In this suit, the petitioner did not choose to implead the respondents 1 and 2. In the

plaint, there are averments of harassment meted out by the respondents 1 and 2 who are attempting to somehow instigate the statutory authorities

to demolish the construction made by the petitioner, and to the notices dated 9.8.2000 and 27.10.2000 referred to above as having been

instigated only on the misrepresentation of the legal heirs of Babu Pillai. On 6.12.2000, the respondents 1 and 2 filed I.A.No.20558 of 2000 for

impleading themselves and respondents 5 and 6 as defendants 3 to 6 in the suit. According to the averments made in the affidavit in support of the

petitioner, they are necessary and proper parties and they are aggrieved by the illegal construction made without any sanctioned plan and without

the permission of the land owners, namely, themselves. According to them, the outcome of the suit will definitely affect their rights. So, they have to

be impleaded as defendants in the suit. The application was ordered by the Court below against which the present civil revision petition has been

filed.

Mr. Veerapathiran, learned counsel for the petitioner submitted that there is no reason why the respondents ought to be impleaded, and that the

petitioner was the dominus litus and she ought not to be saddled with the burden of defendants against whom she is not seeking any relief. Learned

counsel also submitted that the impleading petition was itself filed making certain averments, which are not based on truth. He pointed out to

paragraph No.3, in the affidavit in which an impression was sought to be created in the mind of the Court, that this Court in W.P. No. 13400 of

2000 has actually directed, to demolish the construction. According to Mr. Veerapathiran the impugned order was obtained by such

misrepresentation and by misleading the Court. The learned counsel relied on the following cases: (1) Dr. s. Kameswaran Vs. A. Jayaraman and

another, , where the prayer to implead the proposed party was rejected by the Division Bench of this Court. (2) Furkan Ahmad Vs. Sayed Ahmed

Raza and others, , where the Court held that the plaintiff has a right and prerogative to choose and implead his defendants. (3) Terai Tea Co. Pvt.

Ltd. Vs. Kumkum Mittal and others, and (4) Razia Begum Vs. Sahebzadi Anwar Begum and Others, , to show in what circumstances a party can

be impleaded. He also, submitted that when the status of the respondents 1 and 2 to be shown as parties itself has not yet been decided how could

they file the application showing the respondents 5 and 6 also as proposed parties.

Mr. Lakshmi Narayanan, learned counsel for the respondent, submitted that the respondents are the owners of the land and the petitioner

herself has been given permission to take possession as a lessee only under the rental agreement referred to above. He submitted that the

construction which is now assailed as illegal was made by the Petitioner by virtue of the permission granted by the respondents predecessor,

namely, Babu Pillai, and Ranga Pillai, the sixth respondent herein, under the lease agreement. So they necessarily have to be impleaded as

defendants and the suit has been filed without impleading them deliberately by the petitioner to obtain orders behind their back. According to the

learned counsel, the answer to the question is provided by Order 1, Rule 10, C.P.C., which provides that a person can be impleaded who is found

to be a necessary or proper party. He relied on the judgment reported in M/s. Aliji Monoji and Co. Vs. Lalji Mavji and others, , which according

to him really decides the issue.

It is not in dispute the superstructure which is sought to be demolished by the impugned notices has constructed upon the land which belongs to

the parties who seek to be impleaded. According to the respondents 1 and 2, the permission to put up construction was given under the lease

agreement. This is also evident from a reading of Clause 1 of the rental agreement. The impugned notices issued by the respondents 3 and 4 is with

reference to the alleged violation by the petitioner of the statutory provision while putting up the superstructure. The injunction prayed for in the suit

is against the demolition action by the respondents 3 and 4 pursuant to the impugned notices. Order 1 Rule 10 is the provision which enables the

Court to add a person as a party at any stage in the proceedings if the presence of such person is necessary to decide, adjudicate all questions,

involved in the suit. In the decision reported in Sampatbai and Another Vs. Madhu Singh Gambhirji, , the following passage is found:

The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff

or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the

relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights...... The intervener must be directly and legally interested

in the answers to the questions involved in the case.

In another decision reported in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , the Supreme Court

held that the resistance of the plaintiff to join the new party may not be a relevant consideration if the proposed party''s rights are likely to be

affected by the ultimate decision. In Razia Begum Vs. Sahebzadi Anwar Begum and Others, which was relied on by the learned counsel, the

Supreme Court drew inter alia the following conclusions:

(1) That the question of addition of parties under Rule 10 of Order 1 of the CPC is a question of judicial discretion;

(2) That the person who has to be added as a party must have a direct interest distinguished from a commercial interest;

(3) The rule of present or direct interest may be relaxed in a -suitable case where the subject matter of a litigation is a declaration as regards status

or a legal character, etc.

In Souriyar v. N. Shanmughasundaram, 1972 (2) MLJ 82 this Court had held that a party who is bound by the result of a litigation, if denied an

opportunity to draw the attention of the Court to certain acts which may affect its interest, it would be a travesty of justice, and that in all such

cases the duly of the Court is to implead the parties under Order 1, Rule 10, C.P.C. Keeping these decisions in mind when one looks at the facts

of the case it cannot be denied that at every stage the respondents 1 and 2 who are the landlords have been objecting to what they perceive as

illegal construction on their property. It may very well turn out that the construction is only in accordance with sanctioned plan. It cannot be denied

that a writ petition has been filed and representations have been made by respondents 1 and 2 to the statutory authorities complaining of the

construction. Even according to the plaint, the notice dated 9.8.2000 and the notice dated 27.10.2000, which are sought to be declared as invalid

have been issued only at the instigation of the respondents 1 and 2. If so, the petitioner cannot be seriously heard to urge that the parties at whose

behest the alleged invalid notices have been issued, should not be made parties to the suit. The decision reported in M/s. Aliji Monoji and Co. Vs.

Lalji Mavji and others, is directly on the point. In that case, the municipality issued notice for demolition of unauthorized building, the tenant filed a

suit for permanent injunction against the municipal corporation, the landlord applied to be brought on record and the question was whether the

landlord was a necessary and proper party. The Supreme Court held that,

It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only

reason which makes it necessary to make a person a party to an action is that he would be bound by the result of 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 Supreme Court also drew the distinction between the proper party and a necessary party and held that since the landlord has a direct and

substantial interest in the demised building which is sought to be demolished he should be imp leaded.

In this case, though the facts are slightly different the principle is the same. Instead of one landlord as in the case before the Supreme Court, in

the case there were two landlords, one died and the respondents 1, 2 and 5 are his legal representatives of lessor. The Court below has rightly

ordered that the parties should be impleaded as defendants 3 to 6.

For the aforesaid reasons and the decisions relied on, I am of the opinion that the order of the Court below need not be interfered with. The

C.R.P. is, therefore, dismissed. No costs. Consequently, the C.M.P.No.1344 of 2001 is closed.