Smt. Rukmani vs Municipal Corporation, Jodhpur and Others

B.J. Shethna, J.—Learned Counsel Agrawal for the petitioner vehemently submitted that the trial Judge committed a grave error in allowing the application filed under Order 1, Rule 10, C.P.C. by the present respondents Nos. 2 to 7 to be impleaded as defendants in the suit filed by the petitioner against the respondent No. I Municipal Corporation. Jodhpur. He submitted that the present respondents were neither necessary nor proper parties, therefore, they should not have been joined as defendants in the suit filed by the petitioner which was mainly against the respondent-Municipal Corporation. Jodhpur. In support of his submission, he has relied upon the judgments of this Court-(1) in the case of Rameshwar Dayal v. U.I.T., Alwar, reported in 1989 (1) RLR 231 and (H) an unreported judgment dated 8.4.91 delivered in S.B. Civil Revision Petn. No. 186/90. Gora Devi and Others v. U.I.T. and Others.

In the later case, the learned single Judge of this Court (Hon''ble Mr. K.C. Agarwal, C.J.) (as he ten was) allowed the revision petition filed u/s 115, C.P.C. and set aside the order passed by the Trial Court by which the application to implead person as a defendant in the suit was granted. From the judgment of the case, it appears that certain land acquisition proceedings where started under the Land Acquisition Act for which the notification was issued on 3.4.80 followed by notification of declaration dated 19.3.81. The validity of these notifications were challenged before the High Court and the same was upheld on 6.5.83 and the Collector was directed to take proceedings u/s 5-A of the Act which was earlier dispensed with. During the pendency of that proceedings, the notification u/s 52(2) of the Rajasthan Land Acquisition Act was initiated which was equivalent to Section 6 of the Act. Meanwhile, the petitioners of that case filed a suit for injunction in the year 1984 and the notification u/s 51 and 52 of the Rajasthan Land Acquisition Act. During the pendency of that suit, one Jag ram moved an application for impleading him as partly defendant to the suit. The same was allowed by the trial Judge on 14.2.90 which was under challenge before the High Court on the ground that Jagram was neither a necessary nor proper party. Therefore, his application should have been rejected by the Trial Court.

On the above fuels, the learned single Judge took the view that the acquisition in that case was not taken for the benefit of Jagram alone but it was in the public interest at large. In that view of the matter, the learned single Judge took the view that the Court below should have considered the fact as to whether Jagram''s impleadment as defendant in the suit was likely to achieve any result or purpose or not. Under the aforesaid circumstances, the learned single Judge was of the opinion that since the U.I.T. was a party in the suit, it would have to safeguard the interest of Jagram and many others for whose benefit the land was being acquired and the impleadment of Jagram has unnecessarily delayed the acquisition proceedings. Thus, on the facts of that case, it was held that the case of Jagram was not falling within the four comers of the principle for impleading him as party respondent. Therefore, the revision petition was allowed.

In Rameshwar Dayal''s case (1998 (1) RLR 231) (supra) the petitioner of that case sought an injunction against the U.I.T. and its officers and prayed that they may be restrained from demolishing the ''Chabutra'' of the petitioner or to interfere in the use and occupation and possession of the said Chabutra. The petitioner of that case made an application before the U.I.T. on 30.11.85 for granting permission to construct 4 walls of the disputed Chabutra which was granted by the Assistant town Planner of U.I.T. on 11.12.85 but with some modifications. Hence, he preferred an appeal before the Additional collector who. by his order dated 25.2.85, set aside the order of modification passed by the Assistant Town Planner. In that case, the non-petitioners Nos. 4 and 5 made an application under Order 1. Rule 10, C.P.C. for being impleaded as parties stating that the ''Gali'' over which the Chabutra is situated is their joint property and by the construction of Chabutra. the right of passage of the non-petitioners was affected, it was submitted by them that they had already filed a complaint on 21.11.85 and after inspecting the site, the order Tor demolition of the construction was also passed by the non-petitioner No. 2. The trial court allowed that application for impleading them as parties which was challenged before this Court tinder Section 115. C.P.C.

Waving regard to the facts of that case, the learned single Judge of this Court (Hon''ble Mr. S.C. Agrawal, J.)(as then was) held that by impleading the non-petitioners Nos. 4 and 5 as party defendants, the trial Court had altered the nature of the suit because in the suit, the only question was raised as to whether the construction made by the petitioner over the Chabutra in dispute was without permission of the U.I.T. or not but as a result of joining the non-petitioners N6s.4 and 5 as parties - defendants in the suit, the other question with regard to the "Gali'' being joint was allowed to be raised by the trial Court. Thereby, the trial Court altered the nature of the suit which had seriously and adversely affected the rights of the petitioner resulting into irreparable loss and causing failure of justice. Therefore, the revision was allowed by this Court and the trial Court''s order granting application under Order 1. Rule 10. C.P.C. was set aside.

Coming to the facts of the resent case, it is clear that the petitioner-plaintiff filed a suit against the respondent No. I Municipal Corporation. Jodhpur praying for permanent injunction and restraining it from demolishing the steps constructed on her house, she owns and possesses Plot No. 16 inside Gangani Haveli. Ummaid Chowk. Jodhpur. It is her case that in order to have access to her house, she constructed small steps measuring I ft x 8 ft. in length in total from the road. She has staled in her suit that the respondent-Corporation was threatening to remove the said steps otherwise it will be demolished. She claims easementary rights to have access to her house and pleaded that the stair steps constructed by her did not cause any obstruction or inconvenience to any other person as similar stair steps had been constructed everywhere inside Gangani Haveli by all the owners of the houses including the respondents No. 2 to 7.

The present respondents Nos. 2 to 7 who arc the neighbours of the petitioner made an application under Order 1, Rule 10. C.P.C. before the trial Court in a suit filed by the present petitioner against the respondent-Corporation for impleading them us party-defendants on the ground that they arc going to be vitally affected and they are necessary and proper parties to the suit. The said application filed by them was granted by the learned trial Judge by his order dated 30.9.99. This order has been challenged in this revision petition.

If it is a small lane where initially no steps were there and if they are put up then they arc definitely going to shorten the width of the road and being neighbours, the respondents Nos. 2 and 7 definitely will be going to be affected and the easement right would be definitely infringed, considering this aspect of the case, if the learned trial Court has thought it fit to implead them as defendants in the suit, then this Court cannot interfere with such orders while exercising its powers u/s 115. C.P.C.

In the case of the The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, Manager (Purchase and Stores). Hindustan Aeronautics Ltd., Balangar, Hyderabad, the Hon''ble Supreme Court has held that the High Court had no jurisdiction to interfere with the order of the first appellate Court. It has gone to the extent stating that it is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong or may be in accordance with law or may not be in accordance with taw but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the C.P.C. This judgment of the Hon''ble Supreme Court squarely applies in this case as it cannot be said that the trial Court either exercised its jurisdiction illegally or with material irregularity. The trial Court had jurisdiction to grant that application made before it under Order 1, Rule 10, C.P.C. and on the facts of the case, if the Trial Court is satisfied, then certainly this Court will not interfere with such orders. With all respect to the learned single Judge of this Court, who have allowed the above two revision petitions, they have not at all considered the Supreme Court judgment in Ajit Prasad''s case.

That apart, the law on this point is very well-settled by the Hon''ble Supreme Court in the case of Razia Begum Vs. Sahebzadi Anwar Begum and Others, It has been held by the Hon''ble Supreme Court in Razia Begum''s case that the question of addition of parties under Order 1, Rule 10, C.P.C. is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case, but in some cases, it may raise controversies as to the power of the Court. In contradistinction to its inherent jurisdiction, or. in other words, of jurisdiction in the limited sense in which it is used in Section 115. C.P.C.

Having regard to the peculiar facts of this case and having gone through the impugned order passed by the trial Court, it cannot be said that the trial Court had either committed jurisdictional error or material illegality or irregularity which calls for interference of this Court under its power u/s 115, C.P.C.

In view of the above discussion, this petition fails and is dismissed.

Stay petition is also dismissed.