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Judgment
The petitioners have filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 13.04.2017 (Annexure P/1) passed in Civil Suit No. 978-A/2016, whereby the court below has allowed the application filed by the respondent No. 7 under Order 1 Rule 10 of the Code of Civil Procedure.
In short the facts of the case are that the petitioner/plaintiffs purchased a plot of bearing No 65/98 admeasuring 000 sq.f.t, which forms part of Kh. Nos. 334/243 and 242/1 situated at Khwaza Colony, near East Kamla Nagar, village Narela Shankari, Tehsil Huzoor, district Bhopal from respondent No. 6 through a duly executed and registered sale deed (Annexure P/2). Thereafter, the said land was duly mutated in the names of the petitioners. A Nazul NOC was also obtained vide order dated 18.03.2015. Subsequently, necessary changes were carried out in the municipal records, and the petitioners have also paid the applicable taxes..
It is submitted by the learned counsel for the petitioners that the plot in question is in accordance with the layout duly sanctioned by the Town and Country Planning Department (Annexure P/3). It is further submitted that the petitioners have not encroached upon any portion of the road or any other land, which is evident from the layout plan sanctioned by the Municipal Corporation, a copy whereof is filed as Annexure P/4.
It is submitted that when the petitioners/plaintiffs started construction over the plot in question, respondent Nos. 1 to 5 prevented them, alleging that the said plot forms part of a road and they would not allow any construction thereon. It is further submitted that a room plinth already exists on the petitioners’ plot and the petitioners were merely trying to raise construction over the said existing plinth.
It is submitted that, being compelled by the prevailing circumstances, the petitioners/plaintiffs instituted a suit for declaration and injunction against respondent Nos. 1 to 6. During the pendency of the said suit, respondent No. 7 filed an application under Order I Rule 10 of CPC seeking impleadment as a party on the false and concocted ground that the land in question forms part of a road meant for public use for the residents of the colony developed by respondent No.7.
It is further submitted that although respondent No. 7 has relied upon a sale deed (Annexure P/7), but the same pertains to Khasra No. 241, whereas the suit land forms part of Khasra Nos. 334/243 and 242/1. This fact, by itself, clearly establishes that respondent No. 7 is a stranger to the suit property and, therefore, he is neither a necessary nor a proper party for adjudication of the dispute. However, the learned court below, by the impugned order, has erroneously allowed the application filed by respondent No. 7.
It is submitted that the court below has passed the impugned order under misconception and misinterpretation of the provisions of Order 1 Rule 10 of CPC. The court below has also lost sight of the fact that the lands belonging to petitioners and the respondent No.7 are differently situated.
It is submitted that the court below has also ignored the fact that the petitioners have started raising construction after mutation and obtaining requisite NOC, permission and layout sanctioned by the authorities concerned.
It is submitted that court below has allowed the application merely because the respondent No. 7 had made a complaint to the police in regard to encroachment on the road whereas the petitioners/plaintiffs are not the encroacher and started construction over the plinth already existing on their plot. Hence, prayed for setting aside the impugned order.
To bolster his submission, counsel for the petitioners has relied on a judgment passed by the Hon'ble Apex Court in the case of NAK Engineering Company Pvt. Ltd. vs. Tarun Keshrichand Shah and others reported in 2026 SCC OnLine SC 4.
Per contra, learned counsel for Respondent No. 7 has submitted that the learned court below has passed the impugned order after affording due opportunity of hearing to both the parties and upon proper consideration of all aspects of the matter. It is contended that the disputed plot is situated over an access road, which has been encroached upon by the petitioners, which is causing inconvenience to the residents of the colony. It is further submitted that respondent No. 7 has also lodged a complaint with the police regarding the said encroachment. It is contended that the plot claimed by the petitioners is, in fact, an access road forming part of the land belonging to respondent No. 7. If the petitioners are allowed to raise construction over the said land, it would result in great inconvenience and loss to the residents of the colony developed by respondent No. 7.
It is, therefore, submitted that the order passed by the learned court below does not suffer from any irregularity, illegality or perversity and as such does not warrant any interference under Article 227 of the Constitution of India. Hence, it is prayed that the present petition be dismissed.
To bolster his submission, counsel for the respondents has placed reliance on the judgments passed by the Hon'ble Apex Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another reported i n (2005) 11 SCC 403 and Subodh Kumar Gupta and others reported in (2005) 11 SCC 578 .
The Court below while allowing the application of respondent No. 7 has recorded its finding that an application has been filed by the respondent No.7 contending that there exists a way over the suit plot for ingress and egress and that the alleged encroachment by the petitioners/plaintiffs over such pathway would cause irreparable loss and injury to the respondent No.7. The respondent No.7 had earlier approached the Municipal Corporation and the police authorities lodging complaints and requesting that the petitioners/plaintiffs be restrained from encroaching upon the said access road.
The learned court blow has held that in these circumstances, a prima facie interest of the respondent No.7 in the suit property is made out. Further, failure of the respondents/defendants to appear and contest the suit raises doubt and reinforces the necessity of permitting the respondent No.7 to participate in the proceedings. The court below held that the respondent No.7 has a direct interest in the subject matter of the dispute, therefore, it appears necessary to afford an adequate opportunity to respondent No.7 to defend his interest. Moreover, as conflicting claims have arisen between the petitioners/plaintiffs and the respondent No.7 with respect to the suit property, there exists a possibility of multiplicity of proceedings, which can be effectively avoided by adjudicating all issues in the present suit itself. Accordingly, the court below has held that the respondent No. 7 is not only a proper party but also a necessary party to the proceedings and his impleadment as a defendant would enable complete and effective adjudication of the dispute and allowed the application filed by the respondent No. 7 under Order I Rule 10 of CPC.
Having heard learned counsel for the parties and upon perusal of the record and also the case law referred by the parties, this Court finds that the sole issue pertains to the legality of the order passed by the court below allowing the application under Order 1 Rule 10 of CPC filed by the respondent No. 7.
It is not in dispute that the suit filed by the petitioners/plaintiffs is for declaration of title and permanent injunction in respect of a specific plot forming part of Kh. Nos. 334/243 and 242/1, which the petitioners claim to have purchased through a registered sale deed followed by mutation, grant of NOC, and sanction of layout by the competent authorities. The material placed on record prima facie establishes that the claim of the petitioner is confined to the said Khasra numbers only.
On the other hand, respondent No. 7 has sought impleadment on the ground that the suit land is a public access road in a colony allegedly developed by respondent No.7. However, as contended by the petitioners, the sale deed relied upon by respondent No. 7 pertains to a different Khasra number, i.e., Kh. No. 241 and not to the land forming subject matter of the suit. In absence of any material demonstrating a direct and legally enforceable interest in the suit property, the respondent No. 7 cannot said to be either a necessary party or a proper party.
The principles governing impleadment under Order 1 Rule 10 CPC have been succinctly laid down by the Hon’ble Supreme Court in NAK Engineering Company Pvt. Ltd. (Supra), wherein it has been held that a necessary party is one without whom no effective decree can be passed and a proper party is one whose presence is essential for complete adjudication of the issues involved. Applying the said tests to the facts of the present case, this Court is of the considered view that no relief has been claimed against respondent No. 7 nor can any effective decree be said to dependent upon his presence. I n NAK Engineering Company Pvt. Ltd. (supra) relied by the petitioners, the Hon'ble Apex Court in paras 33 to 37 and 40 to 43, has held as under:-
"33.The fundamental distinction between a "necessary party" and a "proper party" was succinctly explained in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, wherein this Court held:
"6... A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
34.In Kasturi v. Iyyamperumal, this Court crystallized the twin tests for a necessary party:
“…the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. … two tests are to be satisfied for determining the question as to who is a necessary party. The tests are : (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”
35.This principle has been consistently reiterated. In Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd.7, this Court reiterated:
“15.A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”
36.Thereafter, in Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd.8, the broad principles governing impleadment were summarized:
“41.2.A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.
41.3.A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
41.4.If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.”
37.In the case at hand, the respondent Nos. 1 and 2 are not claiming any relief against the appellant. There is no iota of material to indicate that the relief, as claimed in the suit against respondent No. 3, if granted, would be implemented against the appellant. Therefore, the appellant is not a necessary party to the suit.
40.This conclusion is reinforced by the fundamental principle laid down in Kanaklata Das v. Naba Kumar Das9, wherein this Court has observed:
“11.4.…the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.
11.5.… a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.”
41.In the above facts and circumstances, if the High Court, for one reason or the other, has set aside the order of impleadment passed by the court of first instance, we do not consider it to be illegal so as to set it aside and restore the order of the Trial Court.
42.There is one another reason for not interfering with the impugned judgment and order of the High Court. The summons issued in the suit meant to be served upon respondent No. 3, were served in the year 2008. The seal and signatures on the acknowledgement on the said summons is of the appellant which clearly indicates that the appellant had acquired knowledge of the suit in the year 2008. However, the appellant kept silent and moved the motion for impleadment only after the evidence was closed in the year 2014 and the court had directed to proceed ex-parte in the matter. The impleadment application was filed almost after nine years of the knowledge of the pendency of the suit. Thus, the impleadment has been rightly refused to the appellant by the High Court.
43.We are conscious of the fact that the jurisdiction of the High Court under Article 227 is simply supervisory in nature and that the High Court ought not to have intervened in the matter. However, once the order has been interfered with, and rightly so, we do not wish to commit another illegality by restoring an incorrect order passed by the court of first instance."
The court below, while allowing the application, has primarily relied upon the alleged existence of a right of way and complaints made by respondent No. 7 to the authorities. However, such consideration, in absence of a direct legal interest in the suit property, are insufficient to justify impleadment and as such the petitioners cannot be compelled to implead respondent No.7 as a party and litigate against a stranger to the suit.
As it is clear from the aforesaid facts that respondent No.7 claims to be a developer of the colony and, according to him, as per lay out plan, the plot over which declaration has been sought is a way to the residents of the colony. However, it is found by this Court that the respondent No. 7 being a developer has an independent right to seek declaration against construction over a plot obstructing right to way, which leads to the land belong to respondent No.7. As such, respondent No. 7 is having independent right, of which, the respondent No. 7 has to seek independent declaration. The petitioners are dominus litis. The petitioners being plaintiffs cannot be compelled to implead those parties, who are having interest in the said disputed land, as the petitioners/plaintiffs have filed a suit against the contesting respondents, against whom declaration has been sought. Therefore, in the considered opinion of this court, the respondent No. 7 is neither necessary party nor an effective party.
Although reliance has been placed by the respondent No.7 on the cases of Amit Kumar Shaw and Subodh Kumar Gupta (supra), but the same do not support their case in the facts of the present case, as the foundational requirement of an enforceable legal right or direct interest in the subject matter remains not fulfilled.
In view of the aforesaid, this Court is of the considered opinion that the court below has misdirected itself in law and has exercised its jurisdiction with material irregularity in allowing the application under Order 1 Rule 10 CPC.
Accordingly, the petition is hereby allowed. The impugned order dated 13.04.2017 (Annexure P/1) passed by the court below in Civil Suit No. 978-A/2016 is hereby set aside. The application filed by respondent No. 7 under Order I Rule 10 CPC stands rejected.