BHARATKUAMR CHHOTALAL SHAH Vs. BHUPENDRA C THAKKAR

JUDGEMENT

(1.) The appellant herein is the petitioner in Special Civil Application No.3062 of 1996. In the Special Civil Application, he challenged the appellate order passed under Section 9 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The appellant has been doing business in furniture in a shop allotted to him by the Housing Board. The 1st respondent is staying in the residential premises on the upstair portion of the shop. He filed a complaint before the Housing Board, alleging that the appellant has been using electric machines in the manufacturing process of furniture and, thereby, causing nuisance to him and members of the family and disturbance is being caused to sleep and education of the children. The Competent Authority ordered eviction of the appellant from the premises. Aggrieved by the same, he filed an appeal before the City Civil Court and the same was rejected and against the order of the City Civil Court, he filed the Special Civil Application. The 1st respondent herein filed an application for impleading himself in the Special Civil Application filed by the appellant. The application was opposed by the appellant and by an order dated 12.2.1997, the application was allowed and the appellant filed a review application. The review application was dismissed and the learned single Judge held that the order of eviction was passed pursuant to the complaint filed by the 1st respondent herein and, therefore, he was a necessary party as well as a proper party and, thus, the impleading application was allowed. Aggrieved by the same, the present appeal is filed.

(2.) We heard the counsel for the appellant as well as the counsel for the 1st respondent. The counsel for the appellant contended that the 1st respondent is not a necessary party and the learned single Judge erred in holding that he was a necessary and proper party to be impleaded. According to the appellant, the dispute is between the appellant and the Housing Board and to determine such questions, the presence of the 1st respondent is not necessary. The counsel for the 1st respondent contended that the order of eviction was passed on the basis of the allegation made in the complaint filed by the respondent No.1 and a decision therein would affect his rights and, therefore, he was a necessary party. It was also submitted that in the appeal preferred before the appellate authority, the 1st respondent herein was made a party, and even then, he was not impleaded in the Special Civil Application.

(3.) The counsel for the appellant relied on two decisions in Life Insurance Corporation of India and another v. Gangadhar Vishwanath Ranade (Dead) by LRs., (1989) 4 SCC 297, and Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524. The decision in (1989) 4 SCC 297 was in an appeal preferred by the L.I.C., wherein it was contending that the appellant was not liable to pay interest for the delayed payment of the amount and as the delay had occurred on account of the notices issued by the Income Tax Department, the Income Tax Department also should be made a party to the proceeding. This contention was rejected by the Supreme Court. It was held that the claim was made only against the L.I.C. and no relief was claimed in the alternative or otherwise against the I.T.O. and, therefore, the I.T.O. was not a necessary party. It was held that the claim made in the writ petition giving rise to the appeal was for payment of interest by the appellant and as no relief had been sought against the I.T.O., for effective adjudication of the LIC's liability towards the respondent, the presence of the I.T.O. was not necessary. The dictum laid down in the said case has no application to the facts of the present case for the reason that the 1st respondent herein is vitally interested in the outcome of the order that may be passed in the Special Civil Application and, therefore, he is a necessary party.