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2020 Supreme(All) 565
IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, J.
Suresh Khiyani – Appellant
Versus
Jassi Apartment Welfare Society – Respondent
Second Appeal No. 156 of 2020
Decided On : 12-06-2020
Advocate Appeared:
For the Appellant : Gulrez Khan, Adil Jamal
For the Respondent: Ashish Kumar Srivastava
Point of law:
The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (‘Code' for short), which provides for impleadment of proper or necessary parties.
Headnote:
Code of Civil Procedure, 1908 – Order 7 Rule 11 – Specific Relief Act, 1963 – Section 41 – U.P. Apartment (Promotion of Constructions, Ownership and Maintenance) Act, 2012 – Section 25 (3) and (4) – Real Estate (Regulation and Development) Act, 2016 – Societies Registration Act, 1980 – Section 6 – Permanent prohibitory injunction – Dismissal of – Appeal has been filed for setting aside judgment and decree passed by Additional District Judge, arising out of O.S. which was dismissed by the trial court vide judgment – Held, Plaintiff was not seeking relief against wife of defendant, who may be owner of Flat and allegation was against defendant that he has encroached upon common area, may be in active support of his immediate family members i.e. wife and son, as such wife of defendant was not a necessary party to suit and it cannot be said that suit is bad for non-joinder of necessary parties – It is clear that merely because in substantial questions of law so framed in memo of appeal involving interpretation of any particular provision of the law by itself could not be substantial questions of law – No substantial question of law is involved in present appeal, which requires any interpretation by this Court in view of the law laid down by Hon'ble Apex Court in Sir Chunilal vs. Mehta and sons Ltd. (supra) and the questions framed in the memo of appeal, even if are treated to be questions of law, they are not open to interpretation – Appeal Dismissed (Paras 20, 22, 23, 26)
Facts of the Case :
Plaintiff-respondent filed a suit for permanent prohibitory injunction as well as mandatory injunction for removal of the constructions raised during pendency of the suit. The suit was filed on the ground that Flat No. 102 was purchased by the defendant alongwith common space, which was encroached upon by him alongwith his wife during pendency of the suit on 25.1.2014 and the open common parking area was surrounded by a wall for personal use and illegally encroached upon by his wife Smt. Arti Khiyani and his son Rishi Khiyani. The suit was contested by the defendant and denying the plaint allegations it was pointed out that Flat No. 102 was purchased in the name of Smt. Arti Khiyani through registered sale deed dated 9.12.2010 and as such she is a necessary party to the suit and therefore, the suit is bad for non-joinder of parties.
Finding of the Court:
Plaintiff was not seeking relief against wife of defendant, who may be owner of Flat and allegation was against defendant that he has encroached upon common area, may be in active support of his immediate family members i.e. wife and son, as such wife of defendant was not a necessary party to suit and it cannot be said that suit is bad for non-joinder of necessary parties – It is clear that merely because in substantial questions of law so framed in memo of appeal involving interpretation of any particular provision of the law by itself could not be substantial questions of law – No substantial question of law is involved in present appeal, which requires any interpretation by this Court in view of the law laid down by Hon'ble Apex Court in Sir Chunilal vs. Mehta and sons Ltd. (supra) and the questions framed in the memo of appeal, even if are treated to be questions of law, they are not open to interpretation.
Result: Appeal Dismissed
JUDGMENT :
1. Heard learned counsel for the appellant and Sri Ashish Kumar Srivastava, learned counsel for the respondent.
2. Present appeal has been filed for setting aside the judgment and decree dated 4.11.2019 passed by Additional District Judge, Court No. 23, Kanpur Nagar in Civil Appeal No. 33 of 2019 (Jassi Apartments Welfare Society vs. Suresh Khiyani) arising out of O.S. No.1079 of 2011 (Jassi Apartments Welfare Society vs. Suresh Khiyani), which was dismissed by the trial court vide judgment dated 11.02.2019.
3. The plaintiff-respondent filed a suit for permanent prohibitory injunction as well as mandatory injunction for removal of the constructions raised during pendency of the suit. The suit was filed on the ground that Flat No. 102 was purchased by the defendant alongwith common space, which was encroached upon by him alongwith his wife during pendency of the suit on 25.1.2014 and the open common parking area was surrounded by a wall for personal use and illegally encroached upon by his wife Smt. Arti Khiyani and his son Rishi Khiyani. The suit was contested by the defendant and denying the plaint allegations it was pointed out that Flat No. 102 was purchased in the name of Smt. Arti Khiyani through registered sale deed dated 9.12.2010 and as such she is a necessary party to the suit and therefore, the suit is bad for non-joinder of parties. It was alleged that the area in dispute is not a common passage and the same is under the ownership of Smt. Arti Khiyani. The same is not for common use of the residents. The suit was dismissed by the trial court vide judgment dated 11.2.2019 holding that it is not proved from the documentary evidence that it was a common parking place. It was further found that PW-1 and PW-2 through their oral evidence though supported the plaint case, however, their statement does not inspire confidence and on this ground the issue no. 1 as to whether the plaintiff is entitled for mandatory injunction was decided against the plaintiff and ultimately the suit was also dismissed. Issue no. 4 as to whether the court has jurisdiction to hear the suit; issue no. 5 as to whether the suit is barred by Order 7 Rule 11 CPC; and issue no. 6 as to whether the suit is barred by Section 41 of the Specific Relief Act, 1963 were decided against the respondents.
4. The appeal filed by the plaintiff was allowed by the lower appellate court. Two points for determination as per Order 41 Rule 31 CPC were framed by the lower appellate court (1) whether the land in front of Flat No. 102 is a common place open for use of all the flat owners of Jassi Apartment? and (2) whether the suit is barred by any legal infirmity? While deciding first point of determination as to whether the space in front of Flat No. 102 (belonging to the defendant) is a common place open for use of flat owners of Jassi Apartments, upon consideration of the sale deed (Paper No. 20-Ga) it was found that the constructed area of 37.16 sq. mts., which consist of 1 room 1 hall, latrine, bathroom, kitchen was sold to the defendant. An undivided share in the land measuring 24 sq. mts. together parking space was also mentioned in the sale deed and the map. Thus, it was found that the undivided share for common use has not been sold. In the building there are 12 flats. It was admitted by the PW-1 that the outer wall of the building was demolished by the Nagar Nigam and he again raised the wall allegedly on the oral instructions of the Society. He stated that some wall was existing but he had raised the wall in his own area. Thus, points of determination no. 1 was decided against the defendant and in favour of the plaintiff. Insofar as second points for determination as to whether the suit suffers from any legal infirmity it was also noticed that Paper No. 35-Ga is the registration certificate of the society and it was found that although a society was registered during pendency of the suit, however, the suit for injunction can be filed against the person
