M/S. Aliji
Momonji & Co. Vs. Lalji Mavji & Ors [1996] INSC 801 (12 July 1996)
Ramaswamy,
K. Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 53 1996 SCALE (5)485
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have heard learned counsel on both sides.
The
facts are very simple. The appellant-lessee laid the Suit No. 9460/90 for
perpetual injunction against the Municipal Corporation af Bombay restraining them from demolishing a
portion of the building. The Municipal Corporation had issued notice under Section
351 of the Municipal Corporation Act for demolition of the above building on
the ground that the appellant had made unauthorised structures. The contesting
respondents 2 to 6 sought to come on record under Order 1 Rule 10, CPC
contending that they have direct interest in the property and the motion taken
out by the respondent was ordered by the trial Court and the High Court by the
impugned order dated February 17, 1993 was upheld the same in W.P. No.2418
dated July 5, 1993. Thus, this appeal by special leave.
Shri
R.F. Nariman, learned senior counsel for the appellants, contended that the
contesting respondents have only commercial interest in the property but the
real question is: whether the appellant had made construction of the building
sought to be demolished by the Municipal Corporation and, therefore, whether
the landlords- respondents are necessary or proper party. The High Court has
not correctly appreciated the ratio of Ramesh Hirachand Kundanmal vs. Municipal
Corporation of Greater Bombay & Ors.[(1992) 2 SCC 524]. The question
therein was: whether the contesting respondents were necessary or proper party
under Order 1, Rule 10, CPC? It was held that the party was not a necessary or
property party. It would apply to the facts of the case. We find no force.
The
controversy is no longer res integra. It is settled law by catena of decisions
of this Court that where the presence of the respondent is necessary for
complete and effectual adjudication of the disputes, though no relief is
sought, he is a proper party. Necessary party is one without whose presence no
effective and complete adjudication of the dispute could be made and no relief
granted. The question is: whether the landlord is a necessary or proper party
to the suit for perpetual injunction against the Municipal Corporation for
demolition of demised building? The landlord has a direct and substantial
interest in the demised building before the demolition of which notice under
Section 351 was issued. In the event of its demolition, his rights would
materially be affected. His right, title and interest in the property demised
to the tenant or licences would be in jeopardy. It may be that the construction
which is sought to be demolished by the Municipal Corporation was made with or
without the consent off the landlord or the lessor. But the demolition would
undoubtedly materially affect the right, title and interest in the property of
the landlord.
Under
those circumstances, the landlord necessarily is a proper party, though the
relief is sought for against the Municipal Corporation for perpetual injunction
restraining the Municipal Corporation from demolition of the building.
Under
those circumstances, the question of the commercial interest would not arise.
In Ramesh Hirachand Kundanmal's case [supra], this Court had pointed out in para
18 of the judgment that the notice did not relate to the structure but to two
chattels. Original lessee from the landlord had no direct interest in that
property. Under these circumstances, it was held that the second respondent has
no direct interest in the subject matter of the litigation and the addition
thereof would result in causing serious prejudice to the appellant and the
substitution or the addition of a new cause of action would only widen the issue
which was required to be adjudicated and settled, It is true, as pointed out by
Shri Nariman that in para 14, this Court in that case had pointed out that 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
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 not necessary for the purpose of
this case to go into the wider question whether witness can be a proper and
necessary party when the witness has a commercial interest. This Court in New Redbank
Tea Co. Pvt. Ltd. vs. Kumkum Mittal & Ors. [(1994) 1 SCC 402] has pointed
out that respondent 11 who filed a suit for specific performance in the High
Court was sought to come on record in the suit in which he had no direct
interest in the pending matter. Under those circumstances, this Court had held
that respondent 11 was neither necessary nor proper party in the lease-hold
interest involved in the suit. In Union
of India & Anr. vs. District Judge, Udhampur & Ors. [(1994) 4 SCC 737]
the Union of India who ultimately had to bear the burden of payment of the
compensation was held to be a necessary party under Order 1 Rule 10, CPC for
determination of the compensation in respect of the acquired land. In Bihar State Electricity Board vs. State of Bihar & Ors. [(199) 4
Supp. 3 SCC 743] the same question was also reiterated and it was held that the
Electricity Board was a person interested and also a necessary party. In Anil
Kr. Singh vs. Shivnath Mishra [(1995) 3 SCC 147] similar question was answered
holding that the respondent was a necessary party.
In
view of the finding that the in the event of building being demolished, right,
title and interest of the landlord would directly be affected, the landlord
would be a proper party, though no relief has been sought for against the
landlord. The High Court, therefore, was right in refusing to interfere with
the order passed by the trial Court impleading the landlords.
The
appeal is accordingly dismissed. No costs.
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