HON’BLE SRI JUSTICE G.V.SEETHAPATHY Review CMP Nos.5278 and 5279 of 2011 in CRP Nos.3459 & 3465 of 2010 COMMON ORDER: The review CMP Nos.5278 and 5279 of 2001 in CRP Nos.3459 and 3465 of 2010 respectively, are filed under Order 47 and section 114 CPC, seeking review of the common order dated 08.06.2011 in CRP Nos.3459 and 3465 of 2010. 2. Heard both sides. 3. The petitioner herein filed suit OS No.984 of 2010 on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad against the respondents 2 and 3-Municipal Corporation, for declaration that the impugned notice dated 23.12.2009 issued by the Corporation through 3rd respondent-Assistant City Planner, is illegal and contrary to the provisions of Hyderabad Municipal Corporation Act and also for injunction. According to the petitioner, while making construction, he has left the site towards set backs as required under the rules and there has been no deviation from the sanctioned plan or any violation of the building rules and therefore, the notice issued by the Municipal Corporation is unsustainable. While matters stood thus, the first respondent herein, who is a neighbourer of the petitioner’s property filed two applications IA Nos.391 and 392 of 2010 seeking to come on record in the suit and also in the injunction petition IA No.369 of 2010 on the ground that being immediate neighbour, he is affected adversely by the construction made by the petitioner/plaintiff herein, which according to him, are illegal and in violation of the sanctioned plan. The petitioner herein filed counter, opposing the impleadment of the first respondent herein on the ground that the first respondent, being a third party, is neither proper nor necessary party to the adjudication of the dispute between the petitioner and the Municipal Corporation. By common order dated 20.7.2010, the trial Court allowed both the applications and permitted impleadment of the first respondent herein in the suit as also in the injunction application IA No.369 of 2010. Aggrieved by the same, the petitioner herein filed two revision petitions i.e., CRP Nos.3459 and 3465 of 2010. This Court by common order dated 08.06.2011 dismissed both the revisions, without going into the merits of the matter and on the premise that the matter is squarely covered by the earlier common order dated 25.10.2010 in CRP Nos.2870 and 3882 of 2010. 4. It is now stated by the learned counsel for the petitioner that the earlier order dated 25.10.2010 in CRP Nos.2870 and 3882 of 2010 does not cover the dispute in the present revision petitions, inasmuch as in the above case, the complaint against the plaintiff therein was that he was making constructions without leaving any set backs and violating the building rules, whereas, in the present case the complaint of the first respondent herein is that by virtue of the construction made by the plaintiff, his easementary rights of light and air would be adversely affected. 5. The first respondent filed counter, contending that the petitioner has violated the sanctioned plan and raised the constructions virtually touching the compound wall of the first respondent and there is no error apparent on the face of the record, calling for a review of the earlier order dated 08.6.2011 dismissing the revision petitions. 6. As seen from the common order dated 25.10.2010 in CRP Nos.2870 and 3882 of 2010, the said suit OS No.960 of 2010 was filed only for permanent injunction against the Municipal Corporation, restraining the corporation from interfering with the plaintiff’s possession and enjoyment of the suit property therein. The proposed party in the above suit sought to come on record statingthat he was a neighbour and there has been violation of the sanctioned plan without leaving set backs. In the above case, it was observed that the proposed party therein was having some semblance of right and so he would be necessary and proper party to come on record, though no relief was claimed against him. 7. In the present case, apart from contending that the construction made by the petitioner-plaintiff is in deviation of the sanctioned plan, the main contention of the first respondent is that by virtue of the said construction, the first respondent’s easementary rights will permanently be affected. 8. Learned counsel for the petitioner would submit that the petitioner is making construction of only two floors, whereas the first respondent has completed construction of six storied building in his site, which is adjacent to the petitioner’s site and therefore, the question of the petitioner’s two storied building causing obstruction to the flow of light and air to the six storied building of the first respondent does not simply arise. 9. It is noticed that the earlier order dated 25.10.2010 in CRP Nos.2870 and 3882 of 2010 between some other parties in a different suit does not strictly apply to the facts of the present case nor covers the dispute in the present suit and therefore, the application of the said order to the present case is found to be an error apparent on the face of the record. As the two revision petitions were earlier disposed of not on merits, but on the premise that they are covered by the earlier common order dated 25.10.2010, which is now found to be error apparent on the face of record, it is considered a fit case, where the earlier common order dated 08.06.2011 is liable to be reviewed and the same is accordingly recalled. 10. The plaintiff and the first respondent are neighbours, having purchased the adjacent sites and both parties made constructions in their respective plots. It is stated that the constructions have already been completed and they are in possession and enjoyment of their respective plots. The plaintiff alleges that the first respondent has been following the process of construction and never objected for the same when the foundations were laid and pillars were raised and subsequently having developed hatred, started harassing the petitioner by giving false complaints against him to the Municipal Corporation and acting on those complaints, the corporation issued the impugned notices exceeding its jurisdiction, though the petitioner has made the construction in accordance with the sanctioned plan and building rules, duly leaving the set backs as required under the rules. In the affidavit filed in support of his application in IA No.391 of 2010, the first respondent herein alleged that the petitioner obtained permission for construction of ground and first floor, but he made illegal construction of the 2nd floor and the free flow of air and light to the first respondent’s plot would be reduced and the ventilation for his proposed residential plots will be permanently closed. The petitioner herein refuted the said contention on the ground that the construction made by the petitioner is strictly in accordance with the sanctioned plan and the building rules and the question of petitioner’s two storied building causing obstruction to the free flow of light and air to the first respondent’s six storied building does not arise at all. Learned counsel for the petitioner would further contend that in the event of any apprehension of violation of the easementary rights to the light and air, the remedy of the first respondent as against the petitioner is distinct and separate by way of a separate suit and certainly he cannot seek to come on record in the suit filed by the petitioner wherein the relief prayed for is declaration that the impugned notice issued by the municipal corporation is illegal and without jurisdiction. 11. During enquiry of the review applications, the petitioner filed several documents including the sale deeds and the sanctioned plan and also photographs in support of his contention that while making the construction he has left the space towards set backs as required under the rules and the construction is in accordance with the sanctioned plan and the question of petitioner’s construction causing obstruction to the free flow of light and air to the first respondent’s six storied building does not arise. The said documents were not filed before the trial Court and hence, there was no occasion for the trial Court to refer to the same in the impugned order. The trial Court ordered impleadment of the first respondent herein mainly on the ground that in the earlier suit, which was filed by the plaintiff against the municipality for mere injunction, the first respondent was impleaded on his application. It is stated that the earlier suit was withdrawn and subsequently, plaintiff filed the present suit for declaration that the notice issued under section 452 of the Municipal Corporation Act is illegal. Admittedly, no relief is sought in the present suit against the first respondent. The question as to whether or not the first respondent herein would be a proper and necessary party having regard to the nature of the relief prayed for in the present suit is a matter to be considered independently, irrespective of impleadment of the first respondent herein in the earlier suit, which was filed only for injunction. The trial court has to consider the question as to whether or not the first respondent is a proper and necessary party to the present suit in the light of the documents now sought to be filed by the petitioner. Order 1 Rule 10 CPC contemplates the impleadment of proper and necessary party, whose presence before the Court is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The question as to whether or not the first respondent is a proper and necessary party, who can be impleaded in terms of Order 1 Rule 10 CPC has to be considered keeping in view the relief prayed for in the present suit and the dispute that is required to be settled pertaining to the impugned notice issued by the Municipal Corporation. The impugned order passed by the trial Court permitting impleadment of the first respondent on the premise that he was previously impleaded in another suit, which was filed for injunction is therefore held unsustainable and the same is accordingly set aside. 12. In the circumstances, the trial Court is directed to consider afresh the question of impleadment of the first respondent in the light of the documents filed by the petitioner before this Court and other documents, if any, that may be filed by both parties. The matter is therefore remitted to the trial Court for consideration afresh and disposal of the application in accordance with law. 13. In the result, both the revision petitions are disposed of accordingly. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 13.12.2011 bss