IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.393 OF 1999 Between: A.S. Raja & 24 others. - - - Petitioners. AND R.K. Sriramulu Chetty and 3 others. - - - Respondents. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.393 OF 1999 JUDGMENT: This Appeal is filed by the third parties who are affected by the decree of the lower appellate Court. 2. The first respondent/plaintiff herein filed a suit in O.S. No.985 of 1983 before the learned Principal District Munsif, Chittoor, for the following relief : “Suit for declaring Plaintiff’s right of access into Muthu Maistry street all along the length of the building on all points, for grant of permanent injunction restraining the defendants, their men and agents from in any manner erecting structures in the eastern portion of Muthu Maistry street adjoining the plaintiff’s building, which will separate the plaintiff’s building from Muthu Maistry street and for grant of mandatory injunction directing the defendants to remove the structures put up into Muthu Maistry Street and in default directing the removal through process of court and for costs”. 3. The said suit was filed impleading the Commissioner and Special Officer, Chittoor Municipality as first defendant and all the flower vendors who are allegedly licensees of the first defendant were said to be represented by Defendant Nos.2 and 3 in the said suit. At a later point of time, the first respondent-plaintiff herein had sought permission of the trial Court to declare the said suit having been filed against the Defendants Nos.2 and 3 in their representative capacity so as to bind all the licensees of various sheds and shops. The said application I.A.939 of 1989 was however dismissed by the trial Court by Order dated 20th November, 1989. The first respondent questioned the same in C.R.P.485 of 1990 before this Court and by Order dated 08th November, 1991, the said CRP was also dismissed leaving it open to the plaintiff to implead the persons who own the sheds referred to. None of the licensees however were impleaded on the ground that the Plaintiff is not aware of the permissions granted by Municipality and does not know who are the other persons who erected the sheds and as to when they erected the sheds etc., 4. The trial Court considered the evidence let in in the suit on behalf of the plaintiff as well as the defendants and on the issue regarding the sustainability of the suit, framed Additional issues 1 to 3 and came to be hold that the suit was filed without impleading the necessary parties to the suit namely various licensees, particularly in view of the fact that the suit against the third defendant was abated and that the second defendant has already left the shed and was not carrying any business. In the result, the suit was dismissed but on appeal by the plaintiff, the appellate Court through the impugned judgment allowed the appeal by granting the decree against the first defendant i.e. Municipality under the impugned appellate judgment. The appellate court has chosen to defer with the finding of the trial Court referred to above on the ground that the licensees are the floating population and it is impossible for the plaintiff to implead the licensees. 5. Consequently, a decree was granted against the Municipality directing him to remove the existing sheds within a period of one month from the date of judgment failing which plaintiff shall be at liberty to get the same removed by way of execution. Being affected by the said decree of the lower appellate Court, appellants have approached this Court by this Second Appeal interalia questioning the decree on the ground that the said decree cannot be sustained without affected parties i.e. appellants being impleaded as parties to the suit. 6. This Court admitted the Second Appeal on 09-06-2000, framed the following substantial questions of law for consideration : 1) Whether the first appellate Court has erred in decreeing the suit without impleading the appellants herein? 2) Whether the first appellate Court passed the decree under the appeal granting the reliefs beyond the reliefs prayed for by the Plaintiff? 3) Whether the first appellate Court acted illegally in not taking into consideration the order dated.08-11-1991 passed by this Court in C.R.P.485 of 1990? 7. Heard the learned counsel for the appellant and the learned counsel for the first respondent-plaintiff. 8. While the counsel for the appellant has placed on reliance paragraphs 10 and 11 of the judgment of the trial Court holding that the suit is barred for not impleading the necessary parties to the suit. He also placed reliance upon the Order in CRP.485 of 1990 which states in the operative portion as follows : “Thus, when it is a case of each member owning a separate shed and when it is not on record to show that all the sheds belong to the society, the plaintiff cannot be permitted to sue all those members through Defendants Nos.2 and 3 in a representative capacity. The Order whereby I.A.939 of 1989 dismissed does not warrant interference. Accordingly CRP has to be dismissed but this order does not debar the plaintiff to implead the persons who own the sheds referred to as defendants if so advised. In the result, the CRP is dismissed. No costs.” 9. Learned counsel states that in spite of the observations of this Court in giving liberty to the plaintiff to implead all the licensees none of them have been impleaded and the suit was persisted with knowing fully well that the suit is abated against the third defendant and defendant No.2 has ceased to carry on any business and decree against first respondent Municipality directly affects the appellants and by virtue of the said decree, the appellants are likely to be evicted and as such the appellants being directly aggrieved and affected by the decree, though not parties to the suit, they had no other alternative but to move this Second Appeal. 10. Per contra, the learned counsel for the first respondent-plaintiff submits that the appellants who are not parties to the suit cannot question the decree and their remedy if any is only to approach the Municipality. Learned counsel also states that since the licensees are for one year duration and had floating licensees, it is impossible for the plaintiff to implead each one of them and as such the Municipality is impleaded, the same is sufficient and seeks to sustain the above decree. 11. In paragraphs 10 and 11 of the Judgment of the trial court as well as the own contentions of the first respondent-plaintiff in support of I.A.939 of 1989 filed by it before the trial Court, clearly shows that the suit as framed and filed was not a suit in representative capacity. The defendants Nos.2 and 3 were impleaded in their individual capacities and when the cause of action against the defendants Nos.2 and 3 ceases to exist, the plaintiff ought to have impleaded the other licensees. The learned counsel for the first respondent-plaintiff is not right in submitting that just because licensees are floating, it is impossible to implead them and the said submission is clearly against to provision under Order 1 Rule 8 of CPC and the Plaintiff can institute a suit in representative capacity in such circumstances and of such a nature. However, the same was admittedly not done and hence, the suit ought to have been filed by the Plaintiff by impleading the Municipality and all the individual licensees. It was therefore rightly held by the trial Court that the suit cannot be stated as one in the representative capacity and the said Order was confirmed by this Court. Non-impleading of the individual licensees therefore amounts to non-joinder of necessary parties which certainly affects the maintainability of the suit. The lower appellate Court therefore committed serious error in decreeing the suit against the Municipality without realizing that suit decree would directly affect the individual licensees. The appellants were therefore left with no other alternative but to challenge the said decree in this Appeal on the ground that they are affected by the decree. The observations of this Court in the CRP, which are extracted above, clearly govern the legal position and in my opinion, the substantial questions of law as framed above deserves to be answered in favour of the appellants. Appeal therefore is allowed, decree of the lower appellate Court is set aside by restoring the decree of the trial Court. There shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR, J. September, 13, 2010. DSH