Delhi High Court
C.P. Raman vs Ram Pyari Sharma on 23 September, 1996
Equivalent citations: 64(1996)DLT414, 1996(39)DRJ91, 1997RLR134
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT
J.B. Goel, J.
(1) This Revision Petition challenges the legality and propriety of Order dated 17.8.1995 passed by the Learned Civil Judge, Delhi dismissing an application under Order I Rule 10 of the Civil Procedure Code . filed by the petitioners /defendants (inSuitNo.323/94).
(2) The Respondent is the plaintiff in the suit before the Trial Court while the present petitioners are the defendants. Plaintiff filed a suit for injunction against defendants claiming to be owner of Property No.C-1A/114-A, Pankha Road, Janakpuri, New Delhi and was living in that house since 1973 alongwith her family. There is vacant piece of land lying between plaintiff’s flat and neighbouring flat No.C-IA/113-A where the plaintiff has planted shrubs plants and trees and fencing hedges, as alleged by her, to control pollution as there was a drain nearby and to prevent entry of stray animals, hedge fencing has also been done in the front side; the defendants who are also residents of the same block and claiming to be executive members of Residents Welfare Association were hostile and inimical to her, are alleged to have conspired and threatened her on 4.9.1994 and again on 8.9.1994 to demolish the said plantations.
(3) The defendants filed written statement alleging that the land in question belongs to Delhi Development Authority(for short DDA) intended for use by public and that for the maintenance and development of the colony and civic services in the colony have been entrusted to Municipal Corporation of Delhi( for short MCD). As the plaintiff has encroached upon the land belonging to Dda and Mcd for personal use and for commercial purposes by developing a nursery there and by raising fencing others have been deprived of its use As the land belongs to them, both Dda and Mcd are necessary and proper parties and should have been imp leaded. It is also pleaded that there is drainage line passing through the land in question and encroachment of the land by the plaintiff will cause obstruction to drainage there. In replication the plaintiff has not denied that the land belongs to Dda, and the maintenance of the colony has been handed over to M.C.D. by the DDA.
(4) Alongwith the suit the plaintiff had also filed an application under Order 39 Rules 1 & 2 Civil Procedure Code . seeking injunction against the defendants not to destroy or cut trees, shrubs, plants, fencing hedges etc., from the suit land. By order dated 30.9.1994 that application was allowed granting injunction against defendants, but the defendants will be entitled to- enter the same to check drainage system existing there. While disposing of another application under Order 47 Rule 1 Civil Procedure Code by order dated 28.3.1995 it has also been noticed that an iron gate has also been installed in front of the suit land by the plaintiff.
(5) The defendants thereafter filed an application under Order I Rule 10 Cpc dated 15.4.1995 seeking impleadment of Dda and the Mcd as the land in question belongs to them. In reply dated 25.5.1995 filed by the plaintiff this application has been contested and it has been alleged that no cause of action, grievance or apprehension of any sort has arisen against Dda and M.C.D. and so they are neither necessary nor proper parties.
(6) The learned Trial Court vide impugned order dated 17.8.1995 has dismissed this application with the following observations: “3.HEARD.Plaintiff has not claimed any title to the suit land nor has she claimed its exclusively possession. Vide orders of this Court defendants being residents of same locality have been allowed to go over the suit land for certain purposes. When no cause of action has accrued in favour of the plaintiff and against Dda and Mcd, the prayer of defendants cannot be acceded to. Nor of the rights of Dda and Mcd being prejudiced in their absence. Hence application is dismissed.”
(7) Learned counsel for the petitioner has contended that the land in question is meant for public, use and public benefit but the plaintiff by encroaching upon it for her exclusive use by her and her family wants to grab it and to deprive its use to the inhabitants of the area, and as the land vests in the Dda and Mcd, both Dda and Mcd are necessary or in any case proper parties as no effective adjudication can be made without impleading them and there right and interest is directly affected. The learned Trial Court has acted illegally in disallowing the application of the petitioners for impleading the Dda and Mcd without considering the material on record properly nor applied the principles of law correctly. Reliance has been placed on Paramasivam Pillai Vs. Adilakshmi Ammal & Ors. Air 1952(1) Mlj 473, Narhari Mohanti & Ors. Vs. Ghanashyam Bal & Ors. , Kisan Uchatar madhyamik Vidyalaya Samiti, Deoria & Ors. Vs. IIIrd Additional District Judge. Deoria & Ors. , and K.S.Abraham Vs. Mrs. Chandy Rosamma & Ors. Air 1989 Ker.l67. Whereas learned counsel for the respondent has contended that neither Dda nor M.C.D. is necessary party. The plaintiff has no grievance nor claims any relief against them; the plaintiff had apprehension of interference from the defendants and as such the suit has been filed against the petitioners-defendants only and the learned Trial Court has committed no illegality in dismissing the application under Order 1 Rule 10 Civil Procedure Code ..
(8) From the pleadings of the parties as noticed above and the material on record it appears that there is vacant piece of land available between properties No.C-l/A/113A and C-1/A/114A, Pankha Road, Janakpuri, Delhi. Plaintiff is the owner of property No.C-l/A/114A and apparently has enclosed the said vacant land by fencing for her exclusive use, and plants, trees and fencing have been planted there and the land has been enclosed and an iron gate has been fixed on the front side. Admittedly, the open land belongs to Dda and the Mcd has taken over the municipal governance of the colony and its places of common use and utility. Being a public land no one. has exclusive right to the use of the same. Public land is intended to be used by the general public. The defendants apparently have raised objections that encroachment has been made by the plaintiff with a view to grab it and they have been deprived of its use. The plaintiff has sought injunction against the defendants not to interfere in her use and occupation of the said land. Fencing and hedging has been done and an iron gate has been put. Other inhabitants of the area cannot enter there freely and obviously without the consent of the plaintiff. No one is entitled to appropriate public land to his or her exclusive use.
(9) Learned Trial Court has given three reasons for disallowing the application for impleading filed by the defendants. (1) No cause of action arises against Dda and M.C.D. and the plaintiff being dominus lotus and is resisting the impleadment, (2) that the plaintiff has not claimed any title to the suit land nor its exclusive possession; and (3) No rights of Dda and Mcd are being prejudiced in their absence. In Kisan Uchatar Madhyamik Vidyalaya Samiti, Deoria & Ors. (supra) contention was raised that no party can be imp leaded where the plaintiff was not inclined to implead such party. This contention was not accepted and it was observed as under:- “…….ITcan never be a principle which may be made applicable in every case in view of the wide sweep of the language employed in O.I R.10(2) of the Code. The provisions of O.1 R.10(2) of the Code clearly empower the court to implead any person as party suo motu, who ought to have been joined, whether as plaintiff or as 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. In case the plaintiff is permitted as a rule to choose his own opponents and the court does not interfere on the point, in that event, it may be that a collusive decree is obtained against the real owner or interested persons without impleading him as party and when the decree will become final then at a very late stage the persons vitally affected or the real owner may come to know about it. This would lead to defeat the interest of justice which should not be permitted in a court of law and to avoid these ugly situations the Parliament with considerable ingenuity enacted O.1 R.10(2) of the Code which has been couched in a language having very wide sweep.”
(10) In that case inter-alia two Supreme Court decisions Udit Narain Singh Vs. Additional Member, Board of Revenue, Bihar and Munshi Ram Vs. Narsi Ram where scope of O.I R.10(2) has been considered, have been relied. In Udit Narain Singh’s case, it was held that “It is within the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the suit or on an application filed at the instance of such proper party. The same principle has been reiterated in Munshi Ram’s case where it has been held that O.1 R.10(2) of the Code enables the court to implead a person who appears to be necessary party so as to effectually and completely adjudicate upon and settle all the questions involved in the suit.”
(11) In K.S. Abraham Vs. Mrs. Chandy Rosamma & Ors. it was held that in view of R. 10(2) of O.I of Civil P.C. a person may be added as a party to the suit provided it is shown that he has a direct interest in the suit property and hence his presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit.
(12) In Paramsivam Piihi Vs. Adliakshmi Ammal & Ors. 1952(1) Mlj 473 it was held that the construction of the language of Rule 10(2) of O.I of the Code should be as liberal and as wide as possible and should not be restricted merely to the parties involved in the suit but the attempt should be always to make parties all persons who may be necessary in order that there might be a final and complete adjudication of the points involved in the suit.
(13) Thus it cannot be said that in no case new party can be imp leaded without the consent of the plaintiff. It will depend upon the facts of each case. It is open to the Court to implead a new party as defendant even against plaintiff’s consent or against his wish in a fit and proper case and the question of addition of party cannot be left to the choice of the plaintiff alone. Parties interested in the subject matter of the suit and likely to be affected by the decision should be allowed to be imp leaded. It is also not necessary for impleading party that any relief should be asked against him. The object of the rule is to enable the addition of parties for the sole purpose of completely and effectually adjudicating the dispute arising between the original parties in the presence of such of the newly imp leaded parties without which there may be multiplicity of proceed ings taking place.
(14) Plaintiff in the present case seeks injunction against defendants not to interfere in. her use of the land in question. Defendants’ case is that being public land meant for common use they have a right to use it unhindcred. And as the land is public land Dda and Mcd may also be imp leaded for deciding the controversy effectually. The land being Municipal Land or public land Dda or Mcd have got interest in the land and if any one has encroached upon such land they are interested persons if any dispute relating to use of such land arises before the Court and their presence is necessary for deciding the controversy involved in a more effectual and complete manner. It will also avoid multiplicity of proceedings because if encroachment continues the Municipal authorities may have to take separate steps to remove the encroachment. The interest of Dda and Mcd is vitally involved in the case and they are very much interested in the result of this suit. In my view their presence was necessary for complete and effectual adjudication. of the controversy involved in the suit. Learned Trial Court has not taken into consideration the material circumstances of the case and the interest of Mcd and Dda in respect of the land in question and so was not right in rejecting the application of the petitioners/defendants.
(15) I accordingly allow the Revision Petition, set aside the impugned order dated 17.8.1995 of the learned Civil Judge and allowing the application of petitioners/ defendants under Order I Rule 10(2) of the Civil Procedure Code . it is ordered that Municipal Corporation of Delhi and the Delhi Development Authority be also imp leaded as defendants in the suit for effectual and complete adjudication of the controversy involved in the suit. Plaintiff will file amended plaint before the Trial Court within four weeks. In the circumstances, no order as to costs.