1 WP 3520/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3520 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders ------------------------------------------------------------------------------------------------------------------ Mr. I.K. Tripathi i/b Mr. Ram Laxmipalli for the petitioners. Mr. S.B. Amin for respondent nos.2 and 3. CORAM : D.G. KARNIK, J DATE : 15th July 2010. P.C. : 1. Heard. 2. By this petition, the petitioners challenge the order dated 22 March 2010 passed by the learned Judge of the City Civil Court, Borivali Division, at Dindoshi, allowing application of respondent no.2 for joining him as a party to the suit. 2 WP 3520/10 3. The petitioners are occupiers of the suit property. On account of complaint made by respondent no.2 who claims to be the owner of the land, the respondent no.1 Municipal Corporation issued a notice to the petitioners about the alleged unauthorised construction. The petitioners thereafter filed a suit bearing Regular Civil Suit No.1799 of 2009 against the respondent no.1 for a declaration that the notice issued by the respondent no.1 under section 55 of the Maharashtra Regional Town Planning Act was illegal and bad in law and for an injunction restraining the respondent no.1 from demolishing the alleged unauthorised construction. In the said suit, the respondent no.2 was not joined as a party. Respondent no. 2 filed an application under Order 1 Rule 10 of the Code of Civil Procedure for joining him as a party. By the impugned order, the trial court has allowed the said application. 4. Relying upon a decision of the Supreme 3 WP 3520/10 Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524, learned counsel for the petitioner submitted that the respondent no.2 is not a necessary party to the suit and, therefore, the trial court erred in directing him to be made a party. He further submitted that the respondent no.2 was not the owner and he had in fact transferred the property to somebody else and, therefore, respondent no.2 had no interest in the property at all. As such, the respondent no.2 ought not to have been joined as a party to the suit. 5. We are not concerned in the suit about the title to the property nor is the Court concerned to see whether respondent no.2 had transferred the property to a third person or otherwise. Respondent no.2 is a whistle blower who made a complaint to the Municipal Corporation in respect of unauthorised construction made by the 4 WP 3520/10 petitioner. The presence of respondent no.2 as a party would, in my view, aid and assist the Court in determining whether there is any unauthorised construction made by the petitioner. In such circumstances, in my view, the Court has rightly permitted him to be joined as a party so as to seek his assistance. 6. In Ramesh v. Municipal Corporation of Greater Bombay (supra), the Supreme Court, while considering the power of a Court under Order 1 Rule 10 of the Code, has held that the Court has judicial discretion which it has to exercise having regard to the facts and circumstances of the case, to join a person as a party. In exercise of this discretion the Court can direct the plaintiff, though dominus litis, to implead a person as a necessary party defendant. The Court, in the present case, has exercised the discretion to implead respondent no.s2 as a party to the suit. In exercise of extraordinary writ jurisdiction under Article 5 WP 3520/10 227 of the Constitution of India, it would not be appropriate to interfere in such discretion in the absence of perversity in exercise of the discretion. 7. For these reasons, the writ petition is rejected summarily. (D.G. KARNIK, J.)