C.R.No.6063 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on February 05,2010. Rajiv Goel -- Petitioner vs. Sohan Lal Khosla and another --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Arun Jindal,Advocate,for the petitioner Ms. Naiya Gill,Advocate, for respondent No.1. Mr.Neeraj Sharma,Advocate,for respondent No.2. Rakesh Kumar Jain, J: (Oral) This revision arises out of an order passed by learned Civil Judge (Junior Division) Patiala dated 10.8.2009, vide which an application filed under Order 1 Rule 10 of Code of Civil Procedure, 1908 (for short,'CPC') by the petitioner has been dismissed. Brief facts of the case are that a suit for permanent injunction has been filed by the plaintiff Sohan Lal Khosla against Municipal Council, Sanaur, seeking to restrain it from interfering in his peaceful possession over the private passage measuring 200 square yards purchased by him vide sale deed dated 25.1.1999 and to take action in pursuance of notice dated 13.10.2005 issued by the defendants to remove obstruction from the private C.R.No.6063 of 2009 (O&M) 2 passage within seven days. In the plaint, the plaintiff/respondent No.1. has pleaded that he owned an ancestral house abutting khola measuring 200 square yard owned by Krishan Murti son of Dharam Pal and Chaman Parkash Ex- President, M.C.Sanaur son of Jagan Nath and there was a private passage 3'-6'' in front of his house which goes up to that khola only and there was no other house in that street. He had purchased the said khola alongwith the private passage from the aforesaid persons vide registered sale deed dated 25.1.1999. Originally, before purchasing the said khola by the plaintiff, there were five outlets which fell in the drain in front of the house of the plaintiff and there was two ventilators towards the said private passage. Due to submerging of the water of outlets of Rajiv Goel (petitioner) the condition of the house of the plaintiff had become so drastic that it could collapse at any time. It is further averred that the plaintiff after demolishing his old house submitted a map, duly signed, for constructing his house, for its sanction to the defendants, but the defendants Municipal Council threatened the plaintiff to take possession of the said house forcibly which led to the filing of the suit for permanent injunction. During the pendency of the suit, the petitioner filed an application under Order 1 Rule 10 C.P.C. for impleading himself as a party- defendant on the ground that the plaintiff is alleging the public street to be a private street whereas it is a public street having its width at the beginning as 3'-6'' and in the end 7'-6''. The street is having a concrete flooring laid by the M.C. in which there is a pucca drain in which waste water of the house of the applicant is discharged. There is a water pipe which comes from the street to the house of the petitioner and three C.R.No.6063 of 2009 (O&M) 3 ventilators of his house opens in the street. It was specifically alleged in para 3 of the application that the plaintiffs are influential persons and as per the knowledge of the petitioner, they are trying to change the counsel of the M.C. in this case so that other counsel may act as per their wishes. The application was contested by the plaintiff by filing reply in which concrete flooring of the street was admitted , but it was claimed that the same was done by the previous owner. Ventilators of the petitioner were admitted but it was claimed that it was opened with the permission of the previous owner. In reply to para 3 of the application, it was evasively alleged that the averments made are wrong. Meaning thereby it was admitted that M.C. is likely to change the Counsel/Advocate. Learned trial Court, however, dismissed the application vide the impugned order dated 10.8.2009 observing thus:- “After hearing the learned counsel for both the parties, and have also gone through the case file very carefully. From the perusal of the file, it comes out that present plaintiffs have filed the suit for permanent injunction restraining the defendants i.e. Municipal Corporation, Sanaur not to interfere in the peaceful possession of the private street which is a passage 3'-6'' inches to Khola measuring 200 square yards purchased vide sale deed dated 25.1.1999. Though the plaintiff mentioned the words private street in the heading of the plaint as well as in the plaint but he is not seeking any declaration regarding the property being private one. If the plaintiff will encroach upon any land which belongs to the corporation in that case, corporation is liable to take the effective measurement against the present plaintiff. But this fact is categorically denied by the corporation if the plaintiff can encroach upon the street to the extent of 3' at the spot. C.R.No.6063 of 2009 (O&M) 4 There is no such relief sought by the plaintiff against the present applicant regarding any is claimed, therefore, the applicant is neither necessary party to implead in the suit because no apprehension has been shown by the plaintiff against the present applicants''. Aggrieved against the aforesaid order, the petitioner has come up in this revision before this Court. Notice of motion was issued in this case and further proceedings before the trial were ordered to be stayed. Learned counsel for the petitioner has vehemently argued that there are specific allegations contained in the plaint against the applicant/petitioner which could be replied by him if he is impleaded as a party. Moreover, in the affidavit filed by the plaintiff, he has stated on oath that due to submerging of the water of outlets of Rajiv Goel, the condition of the house of the plaintiff has become so drastic that it could collapse at any time. In this regard, Rajiv Goel was requested many time but due to his approach, he did not agree. It is further argued that it was stated on oath that said Rajiv Goel is also Ex. Vice President of Municipal Council, Sanaur and at that time, his wife was Municipal Councillor so he managed to get issued a Notice dated 10.3. 2003 raising objection to said sanction of the map. It was further stated on oath that the plaintiff had put a gate in the said passage which has been demolished by said Rajiv Goel and a complaint was lodged against him on 3.10.2005 with the Incharge Police Post, Sanaur. In the cross examination, the said witness (Sohan Lal Khosla) who appeared as PW-2, has stated on oath, that it is correct that ventilators of Rajiv Goel, neighbourer open in the lane. C.R.No.6063 of 2009 (O&M) 5 Learned counsel for the petitioner has submitted that it has been mentioned in the application filed under Order 1 Rule 10 C.P.C. that an influential person may get a counsel appearing on behalf of the Municipal Council changed in the suit, who may dance on the tunes of the plaintiff and may not protect the interest of the Municipal Council which would ultimately effect his right as the public street would become a private street and would ultimately lead to a lot of complications because water of his house is discharged in the street, fresh water pipe line is coming to his house through the said street and his ventilators are opened in that lane. Learned counsel for the petitioner has relied upon a decision of this Court in the case of Nand Lal Nandwani Vs. Bhagwan Dass 1986 P.L.J223 in support of his contention. On the other hand, learned counsel for the respondent has vehemently argued that since the plaintiff has not claimed any relief against the applicant/petitioner, he is not required to be impleaded as a party. In this regard, learned counsel for the respondent has relied upon a decision of this Court in the case of Naresh Kumar Vs. State of Haryana and others 1990 (2) L.J.R. 144. I have heard learned counsel for the parties and have perused the record with their assistance. Before adverting to the facts of the case, it would be appropriate to refer to the provisions of Order 1 Rule 10 C.P.C. which reads as under:- 10. Suit in name of wrong plaintiff (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been C.R.No.6063 of 2009 (O&M) 6 instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. C.R.No.6063 of 2009 (O&M) 7 (5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877), section 22], the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. The aforesaid provisions of law empowers the Court to add or delete any party to the suit or whose presence before the Court is necessary for determination of real matter in dispute. In the present case, the plaintiff has himself specifically made allegations in the plaint against the petitioner and while appearing as a witness in his examination-in-chief, has repeatedly deposed on oath against the petitioner. Basically, though the suit is for permanent injunction, yet, the plaintiff is claiming injunction on the basis of title to the street in question to be a private street, though according to the petitioner, the said street is a public street in which he has equal right as his outlets for discharge of waste water and ventilators opens and he is getting drinking water connection to his house through it. In this regard, the judgment cited by the learned counsel for the petitioner in Nand Lal Nandwani's Case (Supra) is fully applicable because in that case, a suit for permanent injunction was filed by Nandwani against Municipal Committee, Sonepat restraining them permanently from demolishing their walls constructed on the land in dispute. In the said suit, Bhagwan Dass filed an application for impleading him as a party on the ground that the Municipal Committee was colluding with the plaintiffs and the suit had been filed with the intention to encroach upon its property. The trial Court allowed the application on the ground that to enable the Court to adjudicate effectively and completely upon the question involved in the suit, Bhagwan Dass is C.R.No.6063 of 2009 (O&M) 8 impleaded as a party. That order was challenged in revision before this Court. This Court after considering the facts and circumstances observed as under:- “After considering of the arguments of the learned counsel for the parties and going through the above rulings, I have come to the opinion that Bhagwan Dass, though not a necessary party but can be said to be proper party. As noticed earlier, his house is said to be situated opposite to the site in dispute just across the street. According to Bhagwan Dass, the site in dispute has been reserved in the colony by the Municipal Committee as a park. Every person is interested in the environments of his house. According to Bhagwan Dass, the Municipal Committee is colluding with the plaintiff and thus the plaintiff will be successful in encroaching upon a part of the site reserved for a park. It is not a strict rule that a person cannot be added as a defendant against the wishes of the plaintiff. If a person is likely to be affected by the result of the suit, he becomes a proper party and should be allowed to be added”. On the contrary, judgment cited by learned counsel for the respondents in Naresh Kumar's Case (Supra), the facts were that the plaintiff had filed a suit for declaration against the State of Haryana and others in which one Ram Karan filed an application to be impleaded as a party on the ground that if the plaintiff succeeds in his suit, then he would be put to an irreparable loss and injury. The application was contested by the plaintiff on the ground that designation and cadre of the plaintiff and that of said Ram Karan was not the same. The plaintiff has nothing to do with the seniority and promotion of said Ram Karan. It was observed by this Court that at the time of notice of motion, the plaintiff had submitted C.R.No.6063 of 2009 (O&M) 9 that he is not claiming any seniority over Ram Karan and no relief even remotely has been requested against him in the suit. In this view of the matter, this Court had held that there was no occasion for the trial Court to implead Ram Karan as a party, even though the plaintiff was junior to him as no relief was sought by him in the suit which could adversely affect the right of Ram Karan. In my opinion, the facts of the case of Naresh Kumar (Supra) are altogether different from the facts of the case in hand which are more likely similar to the facts of case of Nand Lal Nandwani (Supra). In view of the above, I find that the reasonings adopted by the learned trial Court for the purpose of dismissing the application suffer from material irregularities and illegality. As such, the present revision is allowed and the impugned order herein is set aside and the application filed by the petitioner is allowed. February 05 ,2010 (Rakesh Kumar Jain) RR Judge