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2014 Supreme(Bom) 739
In the High Court of Bombay at Goa
S.B. SHUKRE, J.
Premanand Gajanan Naik & Another
Versus
Sachit Gajanan Naik & Another
Writ Petition No. 52 of 2014
Decided on: 25-03-2014
For the Petitioners:Sudesh Usgaonkar, Advocate.
For the Respondents:R1, V.G.P. Dukle, R2, S. D. Padiyar, Advocates.
Headnote:Civil Procedure Code, 1908 - Order I, Rule 10 - Impleadment of a party as co-defendant. - Where suit was filed against respondent-2 for declaration that trade licence granted to respondent-1 is null and void therefore joinder of respondent-1 as co-defendant justified. - Power under Order I, Rule 10 of CPC must be exercised by a Civil Court in a manner as to advance cause of justice by doing that which is a must for determination of real controversy involved in suit. Power is not to be used just asking by any party. Party who seeks its impleadment in suit must satisfy that its presence is necessary for determination of real controversy in suit.
Real test for ascertaining of presence of party would lie in answer to question as to whether party has interest in suit and if answer is yes, presence of party would become necessary. Reason being that a patty having interest in lis is most likely to be affected directly and substantially in its rights by a decision in suit. But, care has to be taken to ensure that interest of party is real and direct and is not based upon a claim which has no direct relation with subject-matter or cause of action of suit or reliefs claimed in suit. If interest is remote or indirect, party would not be a necessary party and thus cannot be joined as party to suit.
Civil Procedure Code, 1908 - Order I, Rule 10 - Necessary party to suit. - If interest of a party is remote or indirect, party would not be a necessary party and his joinder cannot be allowed. - The record of respondent No. 2 may show the entire building to be jointly owned by these parties and it may also show that initially it had asked for a NOC from petitioner No. 1. But them, it is also the case of respondent No. 2 that it was on the basis of some information provided and some documents produced by respondent No. 1 that it was considered by it that trade licence in respect of the premises in question could be issued to respondent No. 1 in his exclusive name. It is the further say of respondent No. 2 that the premises in question have been separately assessed to tax in the name of respondents No. 1, which action has been called illegal by the petitioners. In paragraph 23 of the plaint the petitioners have specifically alleged that respondent No. 1 has fraudulently and by misrepresent obtained trade licence from respondent No. 1. On the basis of the these allegations the relief of cancellation of trade licence has been prayed for. In such a situation, who else other than respondent No. 1 could answer such allegations and explain the position. By giving evidence as witness for respondent No. 2, the respondent No. 1 cannot adequately and effectively explain the facts and answer the charge against him. He may be required to lead evidence which he cannot do without his pleadings on record. He cannot do it in a partition suit having a different cause of action and respondent No. 2 being not a party thereto. He need not file a separate suit also to assert his rights when law permits him to do the same in this suit.
1. By this petition, the petitioners have challenged the order passed on 20.12.2013 in Regular Civil Suit No. 40/2013/D allowing the impleadment of respondent no.1 as defendant no. 2 to the suit.
2. It is the case of the petitioners that petitioner no.1 and respondent no.1 are brothers and co-owners of immovable property situated at Miranda road, Margao Goa. The petitioners submit that petitioner no.1 and respondent no.1 obtained a construction licence in their joint names for erection of a building on the said immovable property from the MMC Margoa, respondent no. 2. They further submit that petitioner no.1 and respondent no.1 obtained joint licence for construction of the said building and after completion of the building project, respondent no. 2 issued occupancy certificate jointly to petitioner no.1 and respondent no.1.
3. The petitioners submit that said immovable property stands jointly in the names of the petitioner no.1 and respondent no.1. They further submit that sometime in the year 2006, respondent no.1 by suppressing material facts played a fraud upon the petitioner no.1 and managed to obtain a trade licence exclusively in his name to conduct business of lodging and restaurant from some portion of the building jointly owned by petitioner no.1 and respondent no.1. They further submit that the fact that the entire building is jointly owned by petitioner no.1 and respondent no.1 was well within the knowledge of respondent no.2 and still respondent no. 2 granted trade licence to respondent no.1 allowing him to run from certain portion of the said building restaurant and bar. Petitioners submit that in no case without obtaining consent of petitioner no.1, respondent no. 2 could have granted trade licence to respondent no.1. Therefore, the petitioners filed a civil suit bearing Regular Civil Suit No. 40/2013/D against respondent no. 2 for seeking declaration that trade licence granted by respondent no. 2 to respondent no.1 was null and void and necessary reliefs.
4. Respondent no.2 filed its written statement resisting the suit. It contended that the trade licence was issued exclusively in the name of respondent no.1 for the reason that respondent no.1 represented to it that though the premises in the said building were jointly constructed by petitioner no.1 and respondent no.1, the premises with the interference of Shri Ramesh Kamat and Associates were partitioned between petitioner no.1 and respondent no.1 and by virtue of said partition, respondent no. 1 is in exclusive possession and occupation of the portion of premises. There is one more reason cited by respondent no. 2 for grant of trade licence. It is submitted that since the statement was made by respondent no.1 as regards the partition of the said immovable property, respondent no.2 assessed the premises claimed to be in exclusive possession of respondent no.1 and petitioner no.1 in respect of their shares and assessed the same to tax in their respective names.
5. Mean while, respondent no.1 also filed an application praying for intervention and seeking his joinder as a codefendant in the suit.
6. The learned Civil Judge after hearing all the parties, by an order passed on 20.12.2013, found that joining of respondent no.1 as a party defendant was necessary to determine the real issues in controversy and that any order passed in the suit would directly affect the respondent no.1 and accordingly allowed the application directing the addition of respondent no.1 as defendant no.2.
7. Feeling aggrieved, the petitioners have preferred the present writ petition.
8. I have heard Shri Sudesh Usgoankar, learned counsel for the petitioners and Shri V. G. P. Dukle, learned counsel for respondent no.1 and Shri S. D. Padiyar, learned counsel for respondent no.2. With their assistance, I have carefully perused the impugned order and gone through the paper book.
9. Shri Usgaonkar, learned counsel for the petitioners has submitted that the scope of power of the civil
