AI Structured Summary
Not yet generated for this judgment
Judgment
Sudhanshu Dhulia, J
The petitioner has filed this writ petition before this Court invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of
India. The orders impugned dated 13.12.2012 and 06.03.2013 arise out of the civil proceedings in Original Civil Suit No. 437 of 2012 (passed by the
Civil Judge (Junior Division), Dehradun and in Civil Revision No. 102 of 2012 passed by the learned District Judge, Dehradun respectively).
The main contesting parties before this Court are the petitioner and respondent no. 1 who are real brothers. Respondent no. 1 before this Court is
the plaintiff in Civil Suit No. 437 of 2012, in which respondent no. 2 i.e. Mussoorie Dehradun Development Authority (from hereinafter referred to as
“MDDAâ€) is the sole defendant. The relief sought is of declaration i.e. for declaring the order passed by the MDDA as “null and voidâ€. The
plaintiff/respondent no. 1 herein along with the suit had also filed an application seeking injunction.
The petitioner moved an application under Order I Rule 10 (2) of CPC for his impleadment as a necessary party to the proceedings, which was
rejected by the trial court vide order dated 13.12.2012. A revision against the said order was also dismissed by the revisional court vide order dated
06.03.2013.
The reasons assigned by both the courts below for rejecting the application of the petitioner are that the plaintiff/respondent no.1 has only sought a
relief for declaration against the order of the MDDA, and no relief is being sought against the present petitioner.
The dispute in the matter is whether the construction raised by the plaintiff/respondent no. 1 is a legally authorized construction, and can be
validated by law, meaning thereby whether it can be compounded, and since no relief was being sought against the petitioner/applicant therefore he
being not a necessary party, his application has been rejected. The same reasoning has been adopted by the revisional court as well. The petitioner has
challenged both these orders, as referred above, under the supervisory jurisdiction of this Court in the present writ petition.
The case of the petitioner before this Court is that both the petitioner and the plaintiff/respondent no.1 are real brothers and they reside in the same
building. The dispute is regarding the use of a common passage which is used by both the petitioner as well as the plaintiff/respondent no.1. It was
submitted that since it is a common passage and belongs to both the brothers, exclusive construction cannot be raised by the other brother.
This has in its background a litigation/dispute between the plaintiff/respondent no.1 and the MDDA, which according to the petitioner, was initiated
on his own complaint. When the plaintiff (present respondent no.1) was raising a construction on the common passage, the petitioner brought this
activity to the knowledge of the MDDA, which gave a notice to respondent no. 1 for demolition of unauthorized construction under Section 27 of the
Uttarakhand Town Country Planning and Development Act, 1973 as he had no prior sanction from the MDDA. Admittedly, no construction can be
raised in a “development area†(which Dehradun is), without the prior sanction of the MDDA i.e. the Development Authority. The notice and the
subsequent demolition order were challenged by the plaintiff/respondent no.1 before the appellate authority i.e. the Chairman, MDDA who had
dismissed the appeal of the plaintiff/respondent no.1 and thereafter a revision was filed by the plaintiff/respondent no.1 before the State Government,
which also met with the same fate. Ultimately, the plaintiff/respondent no. 1 filed a writ petition before this Court being Writ Petition (M/S) No. 552 of
2012, which was disposed of by a learned Single Judge of this Court vide order dated 30.03.2012. In the order dated 30.03.2012 although the learned
Single Judge did not grant any relief to the petitioner against the demolition order but gave a liberty to the petitioner (respondent no. 1 herein) to move
a compounding application before the MDDA and direction was also given to the MDDA to dispose of such an application in accordance with law.
Admitted position subsequent to this is that an application for compounding of construction was made by respondent no.1/plaintiff before the
MDDA, which has been rejected by the MDDA vide order dated 06.08.2012. It is against this order of the MDDA the plaintiff/respondent no.1 has
sought a declaration!
Learned Senior Counsel for the petitioner Sri V.K. Kohli has argued that once the proceedings regarding the unauthorized construction had already
come to an end before this Court in an earlier round of litigation, raking up the same issue yet again by another round of litigation, is purely an abuse of
the process of the Court. The matter is pending before the Civil Judge (Junior Division), Dehradun for the last seven years where an injunction was
granted in favour of the plaintiff/ respondent no.1. The suit ought to have been dismissed under Order VII Rule 11 of CPC, but such an application has
also not been moved by the MDDA and the interim order still continues.
However, this is not a subject which has to be taken by this Court in this matter. All this Court has to see is whether in the pending litigation before
the court below, the petitioner is a necessary party or not.
The petitioner may not be a “necessary partyâ€, as clearly the plaintiff/respondent no.1 has not sought any relief from the court below against
the petitioner. Therefore, technically speaking the petitioner may not be a “necessary partyâ€, and the suit can proceed even without making the
petitioner a party. The question, however, is whether the petitioner is a “proper partyâ€? The term “proper partyâ€, has got wider connotation.
A proper party is the party whose presence in a suit though may not be necessary but is yet desirable for a just decision of the Court. Rule 10 (2) of
Order I CPC also visualizes this contingency where a party has to be impleaded. Rule 10 (2) of Order I CPC reads as under:-
“Order I
Rule 10. Suit in name of wrong plaintiff.-
(1)…
(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on
such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out,
and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.â€
(Emphasis provided)
A bare perusal of the aforesaid provision shows that the Court even on its own motion can implead a party which it “ought to have been joined
either as a plaintiff or as a defendant, or which is a necessary partyâ€.
Considering the long litigation between the two brothers which is contentious issue between the two, though the present petitioner may not be a
“necessary partyâ€, but he is definitely a “proper partyâ€. Such is also the purpose behind Rule 10 of CPC.
Therefore, in my view both the trial court as well as the revisional court have not appreciated the true meaning of Order I Rule 10 of CPC while
deciding the impleadment application of the petitioner. The rejection of impleadment application of the petitioner is not proper.
Consequently, the writ petition is allowed. The impugned orders dated 13.12.2012 passed by Civil Judge (Junior Division), Dehradun as well as the
order dated 06.03.2013 passed by the learned District Judge are hereby set aside.
A direction is given to the court below to implead the petitioner as one of the defendants in the suit. Considering the nature of the case, it is also
directed that the trial court shall decide the case as expeditiously as possible, preferably within a period of six months from the date of production of a
certified copy of this order.