1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3703 OF 2009 Shantilal Jugraj Kavedia. .. Petitioner versus Vijayraj Mandanraj Kavedia and another. .. Respondents -- Mr.P.B.Shah for Petitioner Mr.G.S.Godbole i/b A.B.Tajane for respondents Mr.R.S.Khadapkar for respondent no.2 -- CORAM : A.S.OKA, J. JUDGMENT RESERVED ON : 5TH FEBRUARY, 2010 JUDGMENT PRONOUNCED ON : 15TH FEBRUARY, 2010 JUDGEMENT :- 1. By This Writ Petition under article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated the 10th October 2008 passed by the learned Civil Judge (Junior Division) Pune. The petition is taken up for final disposal at admission stage. 2. The first respondent filed a suit against the second respondent - Municipal Corporation for perpetual injunction restraining the second defendant from demolishing the suit structure on the basis of a notice dated 27th November 2007. A declaration is also prayed for declaring that the said notice is void ab-initio. The suit structure is a 2 building constructed on property bearing City Survey number 1187 E situated at Ravivar Peth, Pune. It is stated in the suit that the suit structure was in hazardous condition in the year 2006. On 15th April 2006, an assistant engineer of the second respondent Corporation issued notice to the first respondent that the entire wall on the southern side had become dangerous. Thereafter, the first respondent started work of demolition and repair of the old structure. It is alleged that the said work was started on the basis of the notice issued by the second respondent Corporation. Thereafter, a notice was issued by the second respondent alleging that the first respondent was carrying on additional work of the repairs. By notice dated 27th of November 2007, the second respondent called upon the first respondent to remove the supporting columns , beams and steel strips (Kadipat). Thereafter, the first respondent filed the aforesaid suit. 3. Prior to the institution of the said suit, the petitioner filed regular civil suit No. 985 of 2007 against the second respondent Corporation. In the said suit the petitioner stated that he is the owner of property bearing City Survey number 1187D situated at Ravivar Peth, Pune. He stated that the adjoining property (the subject matter of the suit filed by the first respondent) was possessed by the first respondent. It is stated that the first respondent started demolishing portions of upper floors of his property in the month of July 2006. It is alleged that due to massive construction undertaken by the first respondent, the petitioner's property suffered shocks, vibrations etc. It is alleged in the suit that the 3 second respondent was not performing its statutory obligation of demolishing the illegal construction carried out by the first respondent. Therefore the said suit was filed by the petitioner for mandatory injunction against the second respondent. It must be stated here that in the suit filed by the petitioner, after carrying out an amendment , the first respondent and his mother have been impleaded as defendants on the ground that interim application made in the said suit was rejected by the trial Court on account of non-joinder of parties. 4. In the suit filed by the first respondent, the petitioner made an application at Exhibit 24 praying that the first respondent be directed to implead him as a party to the suit. In the said application it is contended that due to construction carried out by the first respondent, the adjoining property of the petitioner has been affected and there is a danger to the adjoining structure of the petitioner. By the impugned order, the learned trial judge rejected the said application by observing that the petitioner has himself filed a suit for mandatory injunction and it was not necessary to implead the petitioner as a party to the suit filed by the first respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is a necessary or a proper party to the suit filed by the first respondent in as much as the specific case of the petitioner is that damage has been caused to the petitioner's property due to illegal construction carried out by the first respondent. He submitted that to the 4 suit filed by the petitioner, the first respondent and his mother have been impleaded as parties. The learned counsel relied upon a decision of division bench of this Court in the case of Chitralekha Builders and others versus G.I.C. Employees Sonal Vihar co-operative housing society limited and others (2005(11)LJSOFT 31). He submitted that the impugned order is illegal. The learned counsel appearing for the first respondent submitted that the petitioner is neither a necessary nor a proper party to the suit. He placed reliance on a decision of this Court in the case of H.R.Baheti(Dr) and others versus the Municipal Corporation of Amaravati and another (1987 (3) Bombay cases reporter 19). He urged that the reliefs claimed by the first respondent in the suit will not affect the petitioner. The learned counsel appearing for the second respondent submitted to the orders of the Court. He stated that the second respondent Corporation is contesting the suit filed by the first respondent. 6. I have considered the submissions. The case made out by the petitioner in the application at Exhibit 24 is that due to the construction carried out by the first respondent the adjoining structure of the petitioner has been affected and the said structure is posing a threat to the petitioner’s structure. The petitioner is not claiming any right, title or interest in respect of the property held by the first respondent. In the application, the petitioner has not set out any specific damage caused to his property due to the construction carried out by the first respondent. A true copy of the plaint in the suit filed by the petitioner has been annexed. 5 In the said suit , the petitioner has made very vague allegations that due to massive construction undertaken by the first respondent, the petitioner’s adjoining building has suffered shocks, vibrations, noise and harassment. It is not the specific case of the petitioner that any particular damage has been caused by the offending construction of the first respondent to the structure of the petitioner. The main allegation in the suit filed by the petitioner is that though illegal construction is being carried on by the first respondent on the adjoining property, the second respondent has not performed its statutory duty. It must be stated here that in the application at Exhibit 24, it is not the case of the petitioner that the suit filed by the first respondent is not being properly contested by the second respondent. No doubt, there is an allegation that the first respondent has won over the officers of the second respondent municipal Corporation. There is no specific allegation by the petitioner either in the application or in the suit filed by him that due to construction carried out by the first respondent, the structure of the petitioner has been affected in any particular manner thereby affecting rights of the petitioner to enjoy his own structure. As stated earlier, only a vague allegation has been made in the application at Exhibit 24 that the petitioner’s property has been affected by the structure erected by the first respondent and it is posing a danger to the property of the petitioner. Surprisingly in the suit filed by the petitioner no such allegation has been made and it is merely stated that due to construction undertaken by the first respondent, the petitioner’s building has suffered shocks, vibrations, noise and harassment. Any actual damage to the 6 building of the petitioner has not been pleaded. In the circumstances, at this stage, it cannot be said that by the offending construction made by the first respondent, rights of the petitioner as regards his own property have been affected. Only on the ground that the petitioner has filed a separate suit against the second respondent Corporation for mandatory injunction compelling the second respondent to take action of demolition, the petitioner does not become either a necessary or a proper party to the suit filed by the first respondent. The decision of this Court in the case of Chitralekha Builders (supra) will not help the petitioner as in the facts of the case it was held that the presence of the said builders in the suit was necessary to adjudicate upon the issue regarding ownership of the suit property. In the said suit the plaintiff had given no objection for impleading the said builders as parties. 7. Therefore, no fault can be found with the impugned order. However the issue regarding illegality and validity of the construction made by the first respondent is involved in both the suits. In fact that is the main issue to be decided in both the suits. Therefore, evidence in the suits on the aspect of legality of costruction will be common. In the circumstances, it will be necessary to direct that both the suits shall be heard together. It appears that the suits are pending in different Courts at Pune. Therefore the learned Principal District Judge , Pune will have to be directed to transfer both the suits to the same Court. 7 8. Hence, I pass following order : a) The impugned order is confirmed. b) The regular civil suit No. 10 of 2008 pending in the Court of the learned Civil Judge Junior Division (PMC), Pune and regular civil suit No. 985 of 2007 pending in the Court of the learned Civil Judge Junior Division, Pune shall be heard together. The learned Principal District Judge Pune is directed to transfer both the suits to one and the same Court. The learned Principal District Judge shall pass an order accordingly on production of a certified copy of this order. c) All contentions of the parties on merits of the pending suit are kept open. d) The Petition is disposed of on above terms with no orders as to costs. JUDGE