Tuisi Devi And Anr. vs Municipal Corporation Of Delhi ...
1984 Latest Caselaw 418 Del

JUDGMENT

(1) The petitioners under Section 115 of the Code of Civil Procedure (for short 'the Code) challenge the judgment and order dated 13th July, 1984 of the Subordinate Judge, Delhi directing the petitioners plaintiffs to implead Anoar Nath Khanna, respondent No. 2 as defendant.

(2) Briefly the facts are that the petitioners filed a suit praying for a permanent injunction restraining the Municipal Corporation of Delhi from demolishing any part of the two tin shed rooms marked 'C' and 'D' in the site plan filed with the plaint relating to property No. 38-UA Jawahar Nagar, Delhi alleging that they were joint owners of the property, that the said two tin sheds were existing from the beginning and in July-August, 1983 the tin sheds became rusty and started leaking at several places and in order to save them, plaintiff No. 2 replaced the damaged sheets of one of the tin sheds in the month of August, 1983; that demolition squad of the Corporation on 19th August, 1983 came to th Pe properly without any prior notice to any of the plaintiffs-petitioners and in spite of the resistance the Corporation demolished the wall 'A' and 'B' in the site plan up to 6 ft. from the roof level and left the same only up to 3 ft height. Pursuant to this action of the Corporation the petitioners filed the present suit for permanent injunction.

(4) Now to determine whether any show cause notice and demolition notice has been issued by the Corporation I do not appreciate how respondent No. 2 will have any say in the matter. He is not concerned whether any such notice has been issued or not. Thus I am of the opinion that for determination of the questions involved in the present suit as above respondent No. 2 is neither a necessary nor a proper party, and the trial court ought not to have directed him to be imp leaded as defendant in the suit.

(5) Learned counsel for the petitioners submits that respondent No. 2 cannot be imp leaded merely on the ground that the suit cannot be properly defended by the Corporation. In Fateh Raj and another v. SuraJ Roop and another, it has been observed that the applicants could not be imp leaded in the suit merely with the object of enabling them to see that it is properly defended.

(6) Learned counsel for respondent No. 2 submits that respondent No. 2 being a tenant under the petitioners with respect to the court-yard in question and in any cape he having been enjoying the said court yard would be directly effected in case he is not imp leaded as aparty to the suit and the plaintiffs' suit is decreed for any reason. He submits that the presence of respondent No. 2 before the court is necessary to decide the plaintiffs' suit effectively and that the trial court has passed the impugned order in question in its discretion and therefore this court should not interfere with the impugned order. Learned counsel for respondent No. 2 has referred to various judgments in support of his plea that he should be imp leaded as party. In Smt. Anq Lhamu v. Smt. Ladenla and others, Air 1983 Sikkim 5 it has been held that a person has a right to get interim injunction restraining his neighbour from raising illegal construction contrary to the Bye-laws of the Municipality because illegal construction would materially affect the enjoyment of their property by residents in the area. He also refers to K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council Udipi and others, . In Krishna Kali Mallik v. Babulal Shaw and others, , it has been observed that the plaintiff has a right to sue and ask for an injunction where the defendant was constructing his building in violation of the Municipal bye-laws. These authorities do not help the respondent No. 2 as the plaintiffs are not raising any construction. The prayer of this respondent No. 2 is to demolish the alleged construction and admittedly he has already filed a suit against the plaintiffs which is pending in the trial court.

(7) Learned counsel for respondent No. 2 next submits that the expression the issues involved in the suit' cannot be read as issues involved only between the parties to the suit. He refers to Singheshwar Bai v. Babulal Rai and another, , Khetrabasi Chhatoray v. State of Orissa, , Gafur Khan and others v. Government of Orissa and another, , and Harbans Singh and others v. E.R. Srinivasan and another, , Sampatbai w/o Ambaram and another v. Madhusingh Gambhirji, and Razia Begum v.'Sahebzadi Aawar Begum and others, . In Harbans Singh and others (supra) it has been observed as under by this court : "ORDERI Rule 10 can be invoked not only by the parties to the suit but by the court suo moto. But the court can act only when some circumstances are brought to its notice by some party to show that it is necessary to implead some other party also".

I respectfully agree with the observations that the court can implead a third parly if it is necessary to enable the court to effectively and completely adjudicate upon and settle the questions involved.

(8) Learned counsel for respondent No. 2 further refers to Satish Chand Gupta v. Sarvesh Chand Gupta and others, 1984 (26) Dlt 186 where it has been observed as follows : "AFTER considering these cases, it appears to me that it will depend upon the facts of each case whether a person is a proper party or a necessary party so that he may be allowed to be added as a party".

(9) I am of the opinion that in the facts and circumstances of the present case respondent No. 2 is neither a necessary nor a proper party to the suit and therefore the trial court ought not to have directed him to be imp leaded as a defendant. The trial court has acted illegally in the exercise of its jurisdiction in considering the scope of a suit for injunction restraining the Corporation from demolishing the structures when such suits are prohibited under Section 343(4) of the Act.

(10) The revision petition is accepted setting aside the impugned order impleading respondent No. 2 as a defendant. Respondent No. 2 shall also pay costs. Counsel fee Rs. 300.00 .