Dismissed

Shree Ravindra Naik v. Smt. Veena Shrikant Naik and Ors.

Bombay HC6 Jun 2022WP/2718/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the civil court's refusal to implead the petitioner as a party in a suit contesting municipal corporation notices. The court held that mere potential interest does not establish the necessary legal or direct interest required for impleadment.

What did the court decide?

The Writ Petition stands dismissed; impleadment application at lower court upheld.

Shree Ravindra Naik Vs Smt. Veena Shrikant Naik and Ors. — Property and Title | Bombay HC (2022)

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SWAROOP Digitally signedby SWAROOP SHARAD SHARAD PHADKE PHADKE Date: 2022.06.0716:17:45 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2718 OF 2016

Shree Ravindra Naik

… Petitioner

versus

Veena Shrikant Naik and Ors.

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… Respondents

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Mr. Shrikrishna R. Ganbavale, for Petitioner.

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CORAM: N.J.JAMADAR, J.

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DATE : 6^th JUNE, 2022

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P.C.

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Heard the learned Advocate for the Petitioner.

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The challenge in this Petition is to an order dated 17^th January, 2015 passed by the learned Judge, City Civil Court, Greater Mumbai in Chamber Summons No.8 of 2015, whereby the prayer of the Petitioner to implead him as a party to L.C.Suit No.103469 of 2014 instituted by the Respondent Nos.1 and 2 against the Brihanmumbai Municipal Corporation – Respondent No.3 and its ofcers, came to be recected.

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The Petitioner had taken out Chamber Summons with the assertion that the Petitioner is a co-owner of the premises known as Star Chambers and the land beneath the structure situated at Final Plot No.622 and also the co-tenant of the structure, now known as Devrac Hall situated on fnal Plot No.624. Respondent Nos.1 and 2 –

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SSP 1/7

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Plaintiffs had encroached upon the adcoining area and erected structure without his consent and permission of the Municipal Corporation. The Plaintiffs also erected a temporary shed in the open space of Star Chambers and unauthorizedly covered the open passage in between Star Chambers and Khatica Manzil building. The Petitioner had lodged a complaint with the Municipal Corporation. Eventually, notices were issued by the Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act. The Plaintiffs instituted a Suit for incunction restraining the Municipal Corporation and its ofcers from initiating action pursuant to the said notice.

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The Petitioner took out a Chamber Summons as the Municipal Corporation and its ofcers were not taking the requisite steps to remove the encroachment and demolish the unauthorized structure. Apprehending collusion between the Plaintiffs and the Ofcers of the Municipal Corporation, the Petitioner asserted that the presence of the Petitioner was necessary for an effectual adcudication of the dispute.

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The learned Judge, City Civil Court, was not persuaded to accede to the submissions on behalf of the Petitioner, opining, inter alia, that the subcect matter of the suit was the legality and validity of the notices issued by the Municipal Corporation and it had

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SSP 2/7

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nothing to do with the rights of the Petitioner. It was inter alia observed that the presence of the Petitioner was not necessary for an effective decision of the Suit.

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The learned Advocate for the Petitioner urged that there are multiple proceedings between the Petitioner and the Plaintiffs in the Suit. The claim of exclusive ownership of the Plaintiff over the suit premises is contested by the Petitioner. In the circumstances, if the Petitioner is not impleaded as a party to the instant Suit, there is an apprehension that the Plaintiff may take undue advantage of the recection of the prayer of the Petitioner to implead him as a party to the instant Suit.

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The aforesaid submission is required to be appreciated in the light of the nature of the Suit. The Plaintiffs are assailing the legality and validity of the notices issued by the Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act. The fact that the Petitioner might have been the driving force behind the notices issued by the Planning authority, does not entitle the Petitioner to participate in the proceedings. It cannot be said that in the absence of the Petitioner, an effective decree cannot be passed. It is trite that the addition of a party to the suit is not a matter of initial curisdiction, but one of cudicial discretion. A person

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SSP 3/7

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sought to be impleaded in the suit must have direct or legal interest in the outcome of the Suit. A party cannot be added on the premise that the outcome of the suit may affect him in some or other way.

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The pronouncement of the Supreme Court in the case of Ramesh Hirachand Kundanmal V/s. Municipal Corporation of Greater Bombay and Ors.1 exposits the law on this point, in the context of a challenge to the notice of the Planning Authority, as under :

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It cannot be said that the main obcect of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main obcective. The person to be coined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. 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 so that he should be bound by the result of the 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 line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that

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1 (1992) 2 SCC 524

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SSP 4/7

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is by curtailing his legal rights. It is difcult to say that the rule contemplates coining as a defendant a person whose only obcect is to prosecute his own cause of action. Similar provision was considered in Amon V/s. Raphael Tuck and Sons Ltd.2 wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A.V/s. Bank of England3 that their true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subcect matter of the action if those rights could be established, Devlin, J. has stated :

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“The test is ‘May the order for which the Plaintiff is asking directly affect the intervener in the encoyment of his legal rights’.”

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It has been strenuously contended before us that respondent 2 has no interest in the subcect matter of the litigation and the presence of the respondent is not required to adcudicate upon the issue involved in the suit or for the purpose of deciding the real matter involved. It is pointed out that the subcect matter in the suit is the notice issued by the Municipal Corporation to the appellant and the issue is whether it is custifed or not. The Hindustan Petroleum Corporation Limited is interested in supporting the Municipal Corporation and sustaining the action taken against the appellant. But that does not amount to any legal interest in the subcect matter in the sense that the order, if any, either in favour of the appellant or against the appellant would be binding on this respondent. It is true that being lessee of the premises, the Hindustan Petroleum Corporation Limited has an answer for the action proposed by the Municipal Corporation against the Appellant, but for the purpose of granting the relief sought for by the appellant by examining the

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2 (1956) 1 ALL ER 273

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3 (1950) 2 ALL ER 605, 611

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SSP 5/7

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custifcation of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. It that be so, the presence of the respondent cannot be considered as necessary for the purpose of enabling the court to effectually and completely adcudicate upon and settle all the questions involved in the suit. The appellant is proceeded against by the Municipal Corporation for the alleged action in violation of the municipal laws. The grievance of the respondent against the appellant, if any, could only be for violation of the agreement and that is based on a different cause of action. The consolidation of these two in the same suit is neither contemplated not permissible.

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The Courts below have assumed that the subcect matter of the litigation is the structure erected by the respondent or in other words the service station which has been allowed to be operated upon by the plaintiff under the terms of the dealership agreement. The notice does not relate to that structure but is in relation to the two chattels stated to have been erected by the present appellant unauthorizedly. According to the appellant these chattels/structures are movables on wheels and plates where servicing and/or repairs are done and used for storing implements of the mechanics. Respondent No.2 has no interest in these chattels and the demolition of the same in pursuance to the notice I snot a matter which affects the legal rights of the respondent. The Courts below, therefore, failed to note that respondent No.2. has no direct interest in the subcect matter of the litigation and the addition of the respondent would result in causing serious precudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adcudicated and settled. The coining of the party would

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SSP 6/7

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embarrass the plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule in such cases.”

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In view of the aforesaid legal position, it does not appear that the learned Judge, City Civil Court, committed any error in declining to interfere with the prayer of the Petitioner to implead him as a party to the Suit.

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It is, however, clarifed that the recection of the application to implead as a party to the suit, will not bear upon the claim of the Petitioner that he is a co-owner of the subcect premises and the same would be open for adcudication in a proper proceeding before the appropriate forum.

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With the aforesaid clarifcation, the Writ Petition stands dismissed.

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( N.J.JAMADAR, J. )

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SSP

Shree Ravindra Naik v. Smt. Veena Shrikant Naik and Ors.

Case brief

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Shree Ravindra Naik v. Smt. Veena Shrikant Naik and Ors.

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