The main legal point established in the judgment is that the test for determining necessary or proper parties under Order 1, Rule 10 of the Civil Procedure Code was applied to decide whether the applicants should be joined as parties to the civil suit.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Admit. Heard by consent of the advocate for the parties.

2. By the impugned order, the trial Court has rejected the application filed by the applicants under Order 1, Rule 10 for joining them as parties to the Civil Suit No. R.C.S. 642/96. The trial Court has rejected the application on the ground that the applicants are not necessary parties for the effective decision in the matter.

3. Perusal of the plaint in the suit discloses that the non-applicant No. 1 has filed the suit for declaration that the Map submitted by her to the non-applicant No. 2 on 30-12-1991 was deemed to have been sanctioned by the Corporation and the construction has been done in accordance with the said plan and therefore the construction is not unauthorised. It is the case of the applicants that proceedings were initiated by the non-applicant No. 2 against the non-applicant No. 1 pursuant to the complaint by the applicant regarding the unauthorised construction carried out by the non-applicant No. 1 in the said premises. It is further case of the applicants that, if the applicants are not joined in the suit, their rights along with the rights of other tenement holders would be affected in relation to the right of ingress and outgress over the passage specifically left out as per the sanctioned plan.

4. Undisputedly, the suit between the non-applicant No. 1 and the non-applicant No. 2 is pursuant to the proceedings initiated by the non-applicant No. 2 on account of the alleged unauthorised construction done by the non-applicant No. 1. The applicants' right cannot be said to be affected merely because the non-applicant No. 1 has carried out some unauthorised construction in the premises. The issue regarding the right to way is independent and different from the issue regarding the construction being authorised or unauthorised by the non-applicant No. 2. In this view of the matter, I do not find any infirmity in the finding arrived at by the trial Court as regards the non-requirement of joining of the applicants for just and fair decision in the civil suit pending before the trial Court between the non-applicants Nos. 1 and 2. It has been clearly observed by the trial Court that the decision arrived at in the suit between the non-applicants Nos. 1 and 2 could not be in any way bind and affect any of the rights of the applicants in relation to the right of ingress and outgress, if any, in favour of the applicants and other tenement holders, through the passage stated to have been left out as per the sanctioned plan.

5. The Apex Court has already held in (Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others)1, reported in 1992(3) Bom.C.R. 110(S.C.) that a necessary party under Order 1, Rule 10 of Civil Procedure Code is one without whom no effective order can be passed and a proper party is one in whose absence through an effective order can be passed but whose presence is necessary for complete and final decision in the matter. Applying the test laid down by the Apex Court in Ramesh Hirachand Kundanmal's case it cannot be said that the applicants are either necessary parties or even proper parties to the suit in question. Being so, I do not find any error in exercise of its jurisdiction by the trial Court in dismissing the application filed by the applicants under Order 1, Rule 10 of Civil Procedure Code. No case is made out and therefore the C.R.A. is dismissed with no order as to costs.

Revision dismissed.

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