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2010 Supreme(Bom) 1192
In the High Court of Bombay at Goa
MR. JUSTICE N.A. BRITTO
Francisco Rodrigues & Another
Versus
Smt. Angelica Rebello
WRIT PETITION NO.451 OF 2010
Decided on: 23-08-2010
Mr. A.F. Diniz, Advocate for the Petitioners. Mr. C. Mascarenhas, Advocate for the Respondent.
Headnote:Civil Procedure Code, 1908 - Order I, Rule 1 - Adding party to a suit - Application for - Allowed by trial Court - Challenged - Plaintiff, a tenant of house filed suit for injunction against owner of adjoining house restraining him obstructing plaintiff’s access to his house - Defendant seeking to add owner of plaintiff’s house as necessary party to suit - Contention, adding owner of plaintiff’s house enlarge controversy to a title suit - Held - Plaintiff’s suit for injunction simplicitor without any title dispute - Addition of owner of his house not necessary to decide suit - Impugned order set aside - Writ petition allowed. - In Court’s view, the plaintiffs filed the suit for injunction simpliciter only to restrain the defendant from interfering with the suit passage claimed by them or from cleaning the septic tank by virtue of the plaintiffs being in occupation of house No. 101/B in the suit property. The suit will either succeed or fail and in either way it is not going to affect the rights of the said Assumpta Fernandes in any manner. On the contrary, in case the plaintiffs succeed, then the said Assumpta Fernandes may even be benefited from the result of the suit, in case the said Assumpta Fernandes succeeds in the civil suit filed by her against the present plaintiffs, she having become the owner of the suit house and the property by virtue of the gift deed dated 9.2.2006 made by the said Maria Luisa Elizabeth Fernandes. The said Assumpta Fernandes was not a necessary party to the plaintiff’s suit in that no relief was sought against her in as much as her presence was also not required to decide the controversy between the plaintiffs and the defendant. As rightly pointed out by learned Counsel on behalf of the plaintiffs by adding the said Assumpta Fernandes, the controversy would only widen without any benefit to either the plaintiffs or the defendant. The d efendant can always cite the said Assumpta Fernandes as her witness in case they so desire. It may be stated that in the case of Ramesh Hirachanda Kundanmal v. Municipal Corporation of Greater Bombay (citation), the Apex Court has also reiterated that :
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 question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a part to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in 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 therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that 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.
Considering the facts of the case therefore, the writ petition deserves to succeed. The impugned order has been passed in a wrong exercise of discretion and without application of mind to the facts of the case. In other words, the learned Civil Judge has exercised its jurisdiction with material irregularity. Therefore, the impugned order is hereby set aside. Parties to appear before the learned Civil Judge on 31st instant at 10.00 a.m. for further proceedings. Rule made absolute in terms of prayer Clause (a).
Constitution of India - Article 226 -Writ petition - Petitioners/Plaintiffs challenging order dated 4.5.2010 of Trial Court allowing application of defendant for adding a party as defendent to suit - Plaintiffs filed suit for injunction simpliciter only to restrain defendants from interfering with suit passage claimed by them - Petitioner contended, defendant trying to romp in said Assumpta Fernandes, has shown any interest to joined in suit of plaintiffs - Held Party, Assumpta Fernandes allowed to be added as a defendant, not a necessary party to plaintiff’s suit - As no relief sought against her - Impugned order passed in wrong exercise of discrection and without application of mind to facts of case - Set aside - Petition Allowed.
1. Heard. Rule. By consent heard forthwith.
2. The petitioners herein are the plaintiffs in RCS No.53/2006/F and shall hereinafter be
referred to as such.
3. There is no dispute that the suit property surveyed under No.9/4 belonged to Maria Luisa Isabela Fernandes, the sister-in-law of the father of the plaintiffs. There are two houses in the said property. One is bearing house no.101/A and the other bearing no.101/B. The house bearing no.101/B is in occupation of the plaintiffs though the said Maria Luisa Isabela Fernandes by gift deed dated 9/02/2006, gifted the said house along with adjoining property to Assumpta Fernandes, who has filed a suit against the plaintiffs for recovery of the same and the suit is pending. House no.101/A with the surrounding property has been sold to the defendant by the said Maria Luisa Isabela Fernandes by a sale deed dated 18/01/2006. The said Maria Luisa Isabela Fernandes expired on 4/12/1996.
4. The plaintiffs have filed RCS No.53/2006/F for injunction simpliciter against the defendant to restrain the defendant from blocking or obstructing the suit passage/pathway or from doing any construction work thereon and for restraining the defendant from obstructing the plaintiffs from cleaning the septic tank situated in front of house bearing no.101/A and partly on the said suit access.
5. The defendant filed an application dated 19/02/2010, to add the said Assumpta Fernandes as party defendant to the suit stating that a part of the property surveyed under no.9/4 having the said house was gifted by Maria Luisa Isabela Fernandes to Assumpta Fernandes and as the said Assumpta Fernandes had direct and substantial interest in the subject matter of the suit, her presence was necessary in order to adjudicate the real issues in controversy between the parties. That application came to be allowed by the learned Civil Judge Junior Division by order dated 4/05/2010, observing that by virtue of the gift deed dated 9/02/2006 she was necessary party to the suit as she had direct and substantial interest in the subject matter of the suit.
5A. Shri Diniz, learned Counsel appearing on behalf of the plaintiffs submits that the plaintiff is a dominus litis and cannot be made to fight against a person he does not wish to fight. Counsel further submits that the plaintiffs are in occupation of house no.101/B and the plaintiffs' suit is for injunction simpliciter and adding the said Assumpta Fernandes will only escalate the controversy between the parties making the suit of the plaintiffs into a title suit. Learned Counsel submits that the suit filed by the said Assumpta Fernandes for recovery of possession of house no.101/B is bound to take its time and, by adding her, the controversy could not have been allowed to be enlarged. Learned Counsel submits that the plaintiffs have filed the suit for injunction simpliciter because the defendant is trying to block their passage. Learned Counsel has placed reliance on the decision of the Apex Court in J.J. Lal Pvt. Ltd. And Ors. Vs. M.R. Murali and Anr. (2002 (3) SCC 98) wherein the Apex Court has held as follows:
"28. Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord-tenant suit. The relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings. The impleadment of any of the two applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necess
