R RAMAIYA Vs. S SWAMINATHAN

JUDGEMENT

(1.) THIS revision is directed by the respondent-plaintiff against the order in I. A. No. 1046 of 1989 allowing the petition for impleading the Planning Authority, Pondicherry and the Commissioner, Oulgaret Commune Panchayat as party-defendants.

(2.) . The facts which are necessary for the disposal of this revision can be briefly stated as follows: 'the revision petitioner filed the suit for a declaration that he is the absolute owner of the suit B Schedule property, for recovery of possession by evicting the respondent from the encroached B schedule property and for permanent injunction restraining the respondent from interfering with the peaceful enjoyment/ and possession of the revision petitioner. The said suit was contested by the respondent herein and in his written statement, it is stated that the Planning Authority, Pondicherry, and the Commissioner Oulgaret Commune Panchayat are necessary parlies, as even in the plaint it is stated that there is a Government Irrigation Canal separating the property of the revision petitioner and the respondent and that the respondent has encroached the whole length of the canal and that therefore the suit is bad for non-joinder of necessary and proper parties. It is further stated in the written statement that the revision petitioner by his illegal construction has blocked the entire government canal and the extension of the road used by the public, and only when it was brought to the notice of the proposed parties by the respondent, the present suit with a view to cover up his manipulations and misdeeds and to stall the action by the Government authorities. In substance, it was complained to the authorities that the revision petitioner has grossly violated all the norms fixed by the Planning authority, Pondicherry and the Commissioner Oulgaret Commune Panchayat in putting up a residential building.'

(3.) ON the other hand, it is seen that the lower Court has relied on the decision of the Supreme Court reported in Razia Begum v. Sahebzadi Anwar Begum, A. I. R. 1958 S. C. 886, wherein the guidelines for impleading parties under O. 1 Rule 10 C. P. C. were laid down. The guidelines were also extracted in the lower Court's order. It is seen from the above judgment that where the subject matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. In a suit relating to property in order that a person may be added as a party he should have direct interest as distinguished from a commercial interest in the subject matter of litigation. It was further observed that the result of a declaratory decree on the question of status, such as in controversy in the instant case affects not only the parties actually before the Court but generations to come and in view of that consideration, the rule of present interest as evolved by case law relating to disputes about property does not apply with full force. The lower court also relied on the decision reported in Kshitish Chandra v. Dewan Sheikh, A. I. R. 1976 Gauhati 41, where the learned Judge, applying the principles laid down by the Supreme Court in the above quoted case, allowed the application on the ground that in order to enable the court to effectually and completely adjudicate the points at issue, the proposed party is necessary party. The lower court also relied on the decision Durgabala Nazra and others v. Acharya prosbodhananda Adahut and others, A. I. R. 1985 Cal. 204 (N. O. C. ). In addition to those decisions, the learned counsel for the respondent drew the attention of this court to the decision in Kisan Uchattar M. V. Samiti v. IIIrd Additional district Judge, Deoria, A. I. R. 1989 All. 168, wherein it was held: "the provisions of O. 1 Rule 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 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 person without impleading him as a party and when the decree will become final, then at a very late stage the person 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, Rule 10 (2) of the Code which has been couched in a language having very wide sweep. " Reliance was placed on the earlier decision of the supreme Court reported in Bal Nicketan Nursery School v. Kesari Prasad, A. I. R. 1987s. C. 290, it was observed by the Supreme Court: "the scope and effect of O. 1 Rule 10 has been considered in number of cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under O. 1 Rule 10 and promote the cause of justice. " In Munshi Ram v. Narsi Ram, A. I. R. 1983 S. C. 271, it was held: "the omission to implead a defendant was due to a mistake Sec. 21. (1) of the Act would be attracted and the defendant has to be impleaded under O. 1, Rule 10, C. P. C. to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. " In the instant case, the trial court on the facts and circumstances of the case came to the conclusion that the proposed parties are necessary parties in order to enable the said court to effectually and completely adjudicate the issue involved in the said suit. It is seen from the counter filed by one of the proposed party that the revision petitioner herein has encroached upon the public canal and the road which belong to Oulgaret commune Panchayat and that he has made deviations by constructing the building and a deviation notice was issued to him directing him to stop all the works. It is to be noted that the petitioner has not challenged the said order. For all these reasons, I am of the view that the "impugned order does not suffer from any infirmity or illegality whatsoever for this court to interfere in revision. Consequently the revision fails and stands dismissed. No costs.