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High Court of Judicature at Bombay
R.M. SAVANT, J.
Suryakant Tanu Shetkar & Others
Versus
New Milind Co-operative Housing Sty, Ltd. & Others
WRIT PETITION NO.5628 of 2012
Decided on : 28-06-2012
When petitioners, staying in transit accommodation, are a proper party to suit for injunction then they are liable to be impleaded in suit. - In the light of the prayers which have been sought in the suit which according to the petitioners and especially prayer clause (b) which would have a direct impact on their rights that the petitioners have filed, the Chamber Summons in the suit for their impleadment.
On behalf of the plaintiff i.e. the respondent No. 1 society it was contended that if the defendants complete the construction of building ’D’, the applicants and other tenants will be accommodated in building-D and they will become members of the respondent Society and therefore presence of the applicants is absolutely not necessary for determining the controversy between the parties to the suit.
The said contention as can be seen is in direct conflict with prayer clause (b) of the suit wherein the plaintiff is seeking an injunction restraining the defendants from entering upon, carrying out construction activity in the plot of land. The trial Court rejected the said application for impleadment on the ground that considering the reliefs sought in the suit, the petitioners were neither necessary nor proper parties, thereby the trial Court glossed over the relief sought by way of prayer clause (b) of the suit.
Held that the trial Court failed to appreciate that if the respondent society is seeking an injunction for restraining the defendants from entering, carrying out construction activity in the plot of land, the question of the building being completed and the petitioners being accommodated would not arise, in view of the relief sought by prayer clause which has a direct impact on the petitioners right to be accommodated in the building to be constructed. As indicated above, the extra FSI was sanctioned by the State Government vide letter dated 31.5.1999. The respondent No. 1 society is not in a position to state as to whether any building was completed thereafter and flats handed over to the outsiders. In view thereof, the said submission of the respondent No. 1 cannot be countenanced, so as to deprive the petitioners of their right for being impleaded in a suit wherein the prayer sought would have a direct impact on their rights. The petitioners, if not a necessary party are a proper party to the suit in whose absence the suit cannot be effectively adjudicated. Respondent No. 1 society is also not in a position to make a statement that the society would construct for the members of the said ’B ’ and would rehouse them in the building that would be constructed for them by the society. The members of ’B ’ who are from the lower strata of the society cannot be left in the lurch like this. The senior counsel appearing for the petitioners states that the petitioners herein would represent all the member of the ’B ’ in the suit and a preacipe to that effect would be filed in the suit. The senior counsel makes this statement on the instructions of the petitioner No. 1 ’S ’ who is personally present in Court. The senior counsel assures the Court that no further applications would be filed for impleadment in the suit on behalf of the any of the other members of the ’B ’.
In that view of the matter, the impugned order dated 16.6.2012 is required to be quashed and set aside and is accordingly quashed and set aside and the Chamber Summons No. 293 of 2012 would stand allowed and resultantly the petitioners would be impleaded in the suit in question. The counsel for the parties to bring to the notice of the trial Court the instant order as the Notice of Motion is fixed for hearing tomorrow. Amendment in the suit to be made as would be directed by the trial Court. The petitioners would thereafter be entitled to put in their pleadings as per the directions that would be given by the trial Court.
Civil Procedure Code, 1908 - Order I, Rule 1 - Impleadment of a proper party - When petitioners are proper party to suit in whose absence suit cannot be effectively adjudicated, then petitioners entitled to be impleaded in suit.
1 Rule, with the consent of the parties made returnable forthwith and heard.
2 The above Petition takes exception to the order dated 16-6-2012, passed by the Learned Judge of City Civil and Session Court, Greater Bombay, by which order, the Chamber Summons being No.293 of 2012 filed by the Petitioners herein for impleadment came to be rejected.
3 The Petitioners are the members of the unregistered Bhadekaru Sangh in the name of “Bal-Govind Wadi Bhadekaru Sangh”. Since the said Bhadekaru Sangh was unregistered, that the Petitioners filed the Application in their individual capacity. The Petitioners are in occupation along with other members of the Bhadekaru Sangh, of the site in question for the last 40 years which is part of final plot No.162. The suit in question has been filed by the Respondent No.1 society inter alia for the reliefs which are appearing in the prayer clauses (a) to (e) in the plaint amongst which is the relief sought by way of prayer clause (b) with which the Petitioners are really concerned. The said prayer clause (b) reads as follows -
“(b) That this Hon'ble Court by its permanent prohibitory injunction be pleased to restrain the Defendants all and each of them and their agents, servants workmen, representatives and/or any person claiming through them and/or their agents, servants architects, authority holders workmen etc. from utilizing the FSI of the suit plot in any manner and for any purpose whatsoever.”
4 The prayer sought by prayer clause (a) is seeking a direction against the Defendants to execute a conveyance of the suit plot in favour of the Respondent No.1 society.
5 It appears that the development of the final plot No.162 was undertaken by the Respondent No.2 pursuant to the agreement entered into between the persons who are now the members of the Respondent No.1 society, as also agreement with the members of the Bhadekaru Sangh which have been entered into during the period 1986-1987. It appears that about 4 buildings have by now been constructed on the plot in question in which the members of the Respondent No.1 society have already been allotted flats pursuant to the said agreements. However, in so far as the petitioners are concerned, though they have been shifted to the transit accommodation by the builder, they are as yet awaiting the allotment of permanent alternate accommodation to them. It is required to be noted that the State Government by letter dated 31-5-1999 has sanctioned extra FSI to accommodate the members of the said Bhadekaru Sangh, reference to 46 persons who are members of the said Bhadekaru Sangh has been made in the said letter. The said FSI was sanctioned as the State Government was of the view that their rehabilitation was warranted.
6 In the light of the prayers which have been sought in the suit which according to the Petitioners and especially prayer clause (b) which would have a direct impact on their rights that the Petitioners have filed the Chamber Summons in the suit for their impleadment.
7 On behalf of the Plaintiff i.e. the Respondent No.1 society it was contended that if the Defendants complete the construction of building 'D', the applicants and other tenants will be accommodated in building-D and they will become members of the Respondent Society and therefore presence of the Applicants is absolutely not necessary for determining the controversy between the parties to the suit. The said contention as can be seen is in direct conflict with prayer clause (b) of the suit wherein the Plaintiff is seeking an injunction restraining the Defendants from entering upon, carrying out construction activity in the plot of land. The Trial Court rejected the said application for impleadment on the ground that considering the reliefs sought in the suit, the Petitioners were neither necessary nor proper parties, thereby the Trial Court glossed over the relief sought by way of prayer clause (b) of the suit.
8 In my view, the Trial Court failed to appreciate
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