Judges : BALAKRISHNA MENON
GIRIJADEVI - Appellant
Versus
HORMIS THALIATH - Respondent
Case No : C.R.P. No. 3001 of 1982
Decided On : 04/07/1983
Advocates Appeared :
P.K. Kesavan Nair; K.N. Narayana Pillai; T.K. Venugopalan; For Petitioner M.K. Narayana Menon; M.P.R. Nair; M.K.C. Das; For Respondents
Municipal Building Rules - Impleadment - S.263 of the Kerala Municipal Corporations Act - [Hirendra Nath v. Calcutta Corporation (AIR. 1941 Cal. 386), Krishna Kali Mallik v. Babulal Shah & Others (AIR. 1965 Cal. 148), B. Raghunandan Sarvan v. Smt. Kanta Devi and another (AIR. 1975 All. 130)] - The judgment discusses the petitioner's right to insist on the strict observance of the Municipal Building Rules by the 1st respondent, as a violation of the rules directly affects the petitioner's rights. The court refers to various decisions to establish that a construction in violation of the Municipal Building Rules is a direct infringement of the petitioner's rights recognized and provided for in the rules themselves.
Fact of the Case:
The petitioner sought to be impleaded as a party-defendant in a suit filed by the 1st respondent against the Municipal Corporation and its Commissioner. The suit was for an injunction restraining the Corporation and its Commissioner from implementing an order for demolition of an additional construction on the compound wall. The lower court rejected the petitioner's application for impleadment, stating that the plaintiff is the dominus litis and the petitioner has no right to be impleaded against the opposition of the plaintiff.
Finding of the Court:
The court found that the petitioner has a direct interest in the subject-matter of the suit, as a decree for permanent injunction against the defendants would adversely affect the petitioner's right to have any construction in violation of the Municipal Rules demolished and removed. The court set aside the lower court's order and directed the petitioner to be impleaded as an additional third defendant in the suit.
Issues: The main issue was whether the petitioner should be impleaded as a party-defendant in the suit against the opposition of the plaintiff.
Ratio Decidendi: The court held that all persons who have a direct interest in the subject-matter of the suit can be impleaded as parties to the suit. The court referred to various decisions to establish that a construction in violation of the Municipal Building Rules is a direct infringement of the petitioner's rights recognized and provided for in the rules themselves.
Final Decision: The court allowed the revision petition, set aside the lower court's order, and directed the petitioner to be impleaded as an additional third defendant in the suit.
1. This revision is against the order of the Munsiff's Court, Ernakulam, rejecting the petitioner's application to be impleaded as a party-defendant in O. S. No. 604 of 1982 on its file.
2. The petitioner and the 1st respondent in this revision are neighbouring owners of land having a compound wall to separate their respective plots of land. The petitioner is the owner of the western plot with a residential building thereon where she is residing with her family. The 1st respondent's plot is on the east of the petitioner's land.
3. The petitioner had filed O. S. No. 398 of 1981 on the file of the Munsiff's Court, Ernakulam, for an injunction against the 1st respondent from interfering with or altering the compound wall separating the plots of the petitioner and the 1st respondent. She had also applied for a temporary injunction for similar reliefs against the 1st respondent pending the suit. The 1st respondent entered appearance and after
hearing both sides the Munsiff's Court passed an order permitting the 1st respondent to make such alterations to the compound wall as are in conformity with R.30(5) of the Kerala Municipal Buildings Rules. It is the petitioner's case that without complying to the requirements of the rule and without obtaining the requisite sanction from the Corporation of Cochin, the 1st respondent put up additional constructions on the compound wall raising its height to about 20 feet, thereby preventing the supply of light and air to the petitioner's building, almost completely. The petitioner complained about the unauthorised construction by the 1st respondent, to the Commissioner of the Corporation and the Commissioner after due notice to the 1st respondent and after hearing him passed an order under S.263 of the Kerala Municipal Corporations Act directing the 1st respondent to demolish the unauthorised construction. Thereupon the 1st respondent filed O. S.604 of 1982 on the file of the lower court for an injunction restraining the Corporation and its Commissioner from implementing the order for demolition of the additional construction on the compound wall. Even though there are allegations in the plaint in O. S. No. 604 of 1982 that it was at the instance of the petitioner that the Commissioner of the Corporation had passed the impugned order directing the demolition of the additional construction, the petitioner is not made a party to the suit. The suit is only against the Corporation and its Commissioner impleaded as defendants 1 and 2 respectively. The 1st respondent has also obtained an exparte interim order in I. A. No. 2502 of 1982 against the Corporation and its Commissioner from implementing the order for demolition of the additional construction. It was at this stage that the petitioner filed LA. No. 2856 of 1982 under 0.1, R.10(2), CPC. to get herself impleaded as additional 3rd defendant in O.S. No. 604 of 1982, to enable her to oppose the suit and the application for temporary injunction. I. A. No. 2856 of 1982 was dismissed by the lower court by order dated 11-10-1982 on the ground that the plaintiff is dominus litis and the petitioner has no right to get herself impleaded in the suit against the opposition of the plaintiff and the plaintiff cannot be compelled to fight a litigation against a person against whom he does not claim any relief. It is against this order of the lower court that the petitioner has come up in revision.
4. It is the case of the petitioner that the 1st respondent has made additional constructions on the existing compound wall in contravention of the Municipal Rules, the Municipal Rules are intended for the purpose of promoting health, safety and convenience of all the residents in the municipal area and a violation of the rule by an adjacent owner of land and building is a direct infringement of the rights of the petitioner safeguarded under the Rule itself. According to the petitioner she is entitled to insist that in making any construction, the 1st respon
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