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Ramesh Hirachand Kundanmal Versus Municipal Corporation of Greater Bombay and Ors.

1992 (3) TMI 356 - SUPREME COURT OF INDIA

Civil Appeal No. 3570 of 1991 - Dated:- 4-3-1992 - M. Fathima Beevi And S.C. Agrawal, JJ. For Appellant/Petitioner/Plaintiff: K. Parasaran, Joquim Reis and Kailash Vasdev, Advs For Respondents/Defendant: D.N. Mishra, Adv. for J.B.D. & Co. and M.S. Ganesh, Adv. JUDGMENT M. Fathima Beevi, J. 1. We have to consider in this appeal the question whether the second respondent is a necessary or proper party to be joined as defendant under Order I Rule 10 of the CPC, in the suit instituted by the app .....

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ipal Corporation Act to the appellant for demolition of two chattels on the terrace on the ground that these were unauthorised constructions. The appellant instituted the suit No. 6181 of 1988 before the City Civil Court, Bombay, challenging the validity of the notice and for injunction restraining the Municipal Corporation from demolishing the structures. Interim injunction was granted by the court. 3. On 9.9.1988, the second respondent applied for being impleaded as additional defendant in the .....

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tion of India in the High Court of Bombay challenging the correctness of the order. The High Court by the impugned judgment dismissed the writ petition. This appeal by special leave is directed against the judgment of the High Court dated 13.10.1989. 4. Three grounds have been urged by the learned Counsel for the appellant against the sustainability of the order. The plaintiff was dominus litis and, therefore, cannot be forced to join the second respondent as defendant. The second respondent is .....

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imant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to prceed though under Order I Rule 3, to avoid multiplicity of suit and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Rule 10 spec .....

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leadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judic .....

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it is not open to the appellant to contend that a person cannot be added as defendant even in a case where his presence is necessary to enable the Court to decide the matter effectively. 8. The case really turns on the true construction of the Rule in particular the meaning of the words "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." The Court is empowered to .....

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the appellant and the first respondent is the demolition of the unauthorised construction in pursuance to the notice under Section 351 of the Bombay Municipal Act. The second respondent, the lessee, in possession of the service station asserts that the appellant has made an unauthorised construction and the second respondent is in possession of material evidence to that effect. No notice has been issued to the second respondent by the Municipal Corporation and no case of any collusion between t .....

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C, came up for consideration before this Court in Razia Begum (supra). In that case it was pointed out that the Courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it be the questions relating to moveable or .....

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the appellant's status as wife and the status of children as the legitimate children of the third respondent; that the suit was the result of the collusion between the appellant and the third respondent and that if the appellant was declared to be lawfully wedded to the third respondent, the rights and interests of respondents 1 and 2 in the estate of the third respondent would be affected. The application was contested by both the appellant and the third respondent. The trial court allowed .....

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ctively. The Court laid down the law that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of presence of 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 posit .....

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ourt but generation 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. Applying the propositions enunciated to the facts of the case, the Court came to the conclusion that the courts below did not exceed their power in directing the addition of respondents 1 and 2 as parties defendants in the action nor it could be said that the exercise of the discretion was not bound. 13. A clear dis .....

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le consequence of the rule rather than its main objectives. The person to be joined 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 questions involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a .....

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t the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All E.R. 611, that the true test lie .....

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he presence of the respondent is not required to adjudicate upon the issue involved in the suit or for the purpose of deciding the real matter involved. It is pointed out that the subject-matter in the suit is the notice issued by the Municipal Corporation to the appellant and the issue is whether it is justified 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 .....

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rporation, it is not necessary for the Court to consider that answer. If that be so, the presence of the respondent cannot be considered as necessary for the purpose of enabling the Court to effectually and completely adjudicate 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 o .....

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for the illegal actions of the appellant. It was held in that case that the workers of a company are entitled to appear at the hearing of the winding up petition whether to support or oppose it. The court considered wider public interest involved and said that in winding up of a company or changing its management, the Court must take into consideration not only the interest of the shareholders, creditors but also amongst other things the interest of the workers and that the workers must have an .....

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ealer; they have a right, title and interest in the suit premises and the applicants are proper and necessary parties as they have interest in the subject-matter of the litigation and their presence will be necessary and proper to effectively adjudicate upon and determine the cause of action in the suit. The High Court also in confirming the order said that the notice which is challenged is in respect of structure which belongs to the second respondent and the respondent's presence is necess .....

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