SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -1- SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. DATE OF ORDER : - 5.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Pankaj Bohra, for the petitioner. Mr. Suresh Shrimali, for the respondents. <><><> Heard learned counsel for the parties. The petitioner-plaintiff is aggrieved against the order dated 20th June, 2008 by which the trial court impleaded the respondents nos. 2 and 3 as party while allowing the application filed under Order 1 Rule 10 CPC by the newly added respondents nos. 2 and 3. Brief facts of the case are that plaintiff filed the suit for injunction against the Municipal Board, Pali and sought the relief of injunction against the Municipal Board, Pali with the allegation which substantially shows that the newly added SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -2- parties – respondents nos. 2 and 3 have their house adjoining the house of the plaintiff and because of some dispute between them and the proceedings taken in the Municipal Board, the Municipal Board issued notice to the plaintiff (Annex.R/1) and because of that reason the plaintiff had to file the suit for injunction. In the trial court application was submitted by the respondents nos. 2 and 3 under Order 1 Rule 10 CPC stating therein that because of the act of the plaintiff, their properties likely to be damaged or may be put in condition for which there will not be possibility of any repairing of the wall. Be it as it may be, the trial court observed that for determination of the question involved and effective decision of the suit, presence of the respondents nos. 2 and 3 is necessary. According to learned counsel for the petitioner the petitioner is not seeking any relief against the newly added parties and they are challenging the act of the Municipal Board, which was initiated by the Municipal Board, Pali. It is also submitted that petitioner is dominus litus and cannot SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -3- be compelled to contest the issue raised by the party, which is not chosen by the plaintiff to be impleaded as party in the suit nor petitioner is seeking relief against that party. Learned counsel for the respondents vehemently submitted that the respondents nos. 2 and 3 have been impleaded as party by the order of the trial court and thereafter, the injunction application filed by the plaintiff was dismissed by the trial court and plaintiff preferred appeal against the said dismissal order without impleading the respondents as party. It is also submitted that in view of the above fact, the writ petition of the petitioner may be dismissed. Learned counsel for the respondents submitted that under Article 227 of the Constitution of India this Court may not interfere in such an order wherein the trial court impleaded the party in the suit and relied upon the judgments of this Court delivered in the case of Laxmi Narayan & Anr. Vs. Board of Revenue & Ors [SBCWP No.6890/2005, decided on 11.1.2008] and delivered in the case of Mafat Lal Vs. Addl. District Judge, Bhinmal & Ors SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -4- [SBCWP No.770/2008, decidedo n 7.2.2008] and further submitted that when there are allegation against the party in the plaint itself then that party can be impleaded as party in the suit in view of the aforesaid judgment. I considered the submissions of learned counsel for the parties. It is true that plaintiff is dominus litus and normally he cannot be compelled to fight against a person who is not impleaded as party in suit by him, but it has exception and party can be impleaded under Order 1 Rule 10 CPC when courts finds that the presence of party is necessary or the party is proper to be impleaded as party in the suit. While doing so, the court is guided by the well known principles of law that by this, the scope of the suit should not enlarge and further it should avoid the multiplicity of litigation. It is also true that under Article 227 of the Constitution of India, the court possesses supervisory power and normally will not interfere in the order, which is discretionary order and at the same time, it is also true that whether a party's presence is necessary is required to be seen from the facts of each case. The party SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -5- cannot be impleaded when it will change the nature of suit. In this case it appears that dispute is for civil rights and as per applicants and the Municipal Board entered into this dispute by issuing a notice to the plaintiff upon which, the plaintiff filed the suit for injunction against the Municipal Board wherein question of jurisdiction of Municipal board in issuing notice and taking action against the plaintiff will be relevant. So far as civil rights of any private party is concerned, those rights are independent right and not dependent upon grant of permission or refusal of permission to raise construction by the Municipal Board. The issue, which can be between two neghibours may be relevant in certain circumstances for the purpose of any action under the Municipal Act, but not dependent upon the orders passed by the Municipal Board while exercising their power to regulate building construction activities. Even if Municipal Board passes any order in favour of the plaintiff or newly added parties even then the civil rights of the parties remains uneffected then in that situation, by impleading the respondents nos. 2 and 3 in the suit can only enlarge the SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -6- scope of the suit and can change the nature of the suit as the suit for injunction will be converted into suit for determination of the civil rights of two private parties instead of a suit for injunction based on pleas that Municipal Board has no jurisdiction to act against the plaintiff under Municipal Act. In that situation, even at this stage, if the parties are deleted that will only limit the scope of the suit to its original extent in place of enlarging it to convert suit for injunction into suit for determination of the civil rights. In view of the above, the court below has committed serious error of jurisdiction in the light of the facts mentioned above by impleading respondents nos. 2 and 3 as party. Hence, the writ petition of the petitioner is allowed. The impugned order impleading the respondents nos. 2 and 3 as party is set aside. However, it is made clear that none of the observations made above be construed to be in favour of petitioner or against the respondent Municipal Board or against the applicants respondents nos. 2 and 3. SBCWP No.6793/2008 Moti Lal Vs. Municipal Council, Pali & Ors. -7- It is also made clear that respondents nos. 2 and 3 shall have their right for adjudication before any appropriate forum where they can establish their right and can get relief. In the suit for injunction the respondents nos. 2 and 3 have no right and they cannot get any relief, therefore, there is no reason for their presence in the suit. The interim order dated 24.10.2008 passed by this Court is also set aside. (PRAKASH TATIA), J. c.p.goyal/-