1 W.P.No.4081/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4081 OF 2011. 1. Savkar S/o Janku Buchade, Age 38 years, Occ.Business, 2. Pandurang S/o Tabaji Thube, Age 45 years, Occ.Business, 3. Anil S/o Laxman Tikone, Age 31 years, Occ.Business, All R/o Kanhur Pathar, Tq.Parner, Dist.Ahmednagar. ... Petitioners. Versus 1. Suresh S/o Jaywant Thube, Age 45 years,Occ.Business and Agri., R/o Kanhur Pathar, Tq. Parner, Dist. Ahemdnagar. 2. The State of Maharashtra, through Collector, Ahmednagar. 3. The Tahsildar, Parner. 4. The Grampanchayat Kanhur Pathar, Tq. Parner, Dist. Ahmednagar, through its Gramsevak. ... Respondents. 2 W.P.No.4081/11 ... Mr.N.V.Gaware, advocate for the petitioners. Mr.A.L.Tikle, advocate for the Respondent No.1. Mr.N.H.Borade, Asstt. Govt. Pleader for the State. ... CORAM : S.V.GANGAPURWALA,J. Date : 17.08.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The present Respondent No.1 has instituted RCS No.576/2010, against the present Respondent Nos.2 to 4 for declaration and injunction in respect of the notice issued by them. During the pendency of the suit, the present petitioners filed application purportedly U/o 1 Rule 10(2) of the C.P.C. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 3 W.P.No.4081/11 4. Mr.Gaware, learned counsel for the petitioners submits that the Court while rejecting the application U/o 1 Rule 10 of the C.P.C. for addition of the parties has not considered the merits of the matter and the same is rejected solely on the ground that the present petitioners are not the owners. The subject matter is the construction on public way and any order passed would affect the petitioners. According to the learned counsel the Court has not considered the recitals in the application, wherein it is specifically contended that the petitioner had constructed the super structure and various shops and in front of the shops and road there is open space and as per law, no construction can be made in the said open space. In the Government land the construction is made. Even the defendant No.2 Tahsildar had passed an order for removal of the said structure erected by the Respondent No.1 and the same was removed but thereafter,the Respondent No.1 has erected a bigger kiosk and because of which the way is closed and the petitioners had filed complaint in this regard. According to the petitioners because 4 W.P.No.4081/11 of the said construction even the right of light, air has been affected and the way is blocked. All these aspects have not been considered by the Court while rejecting the application. According to the learned counsel, the petitioners have got direct interest in the subject matter and as such should have been added as parties. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Chandrakant Dharma Bhonu Vs. Pandurang Ramchandra Dandekar and another" reported in 2004 (Supp.2) Bom.C.R.329. 5. Mr.Tikle, learned counsel for the Respondent No.1 submits that the petitioner has no direct interest in the subject matter of the suit. The subject matter of the suit is the notice issued by the Respondent No.3. The legality of the said notice is only issue, as such the petitioners can not be added as parties. According to the learned counsel the contents in the application depict a separate cause of action and if the petitioners have got a separate cause of action, they can institute a separate suit but 5 W.P.No.4081/11 can not be added as parties in the present suit. It is further contended that the plaintiff is the dominus litis of his case. The learned counsel relies on the judgment of the Apex Court in a case of "Ramesh Hirachand Kundanmal Vs.Municipal Corporation of Greater Bombay" reported in 1992 (2) SCC 524. According to the learned counsel the consolidation of separate cause of action in the same suit is not permissible nor contemplated. 6. With the assistance of the learned counsels, I have gone through the order, the application and the pleadings. From the application it appears that the petitioners have constructed shopping complex. The petitioners have contended that because of the structure erected by the plaintiff, the right of public way is affected, so also right of light and air. The petitioners have also contended that earlier by the orders of the Respondent No.3, the structure was removed but subsequently it has been again erected. The petitioners have also alleged about the collusion between the 6 W.P.No.4081/11 defendants and plaintiff. No doubt, in the suit the plaintiff has sought declaration regarding the legality of the notice and consequential relief of injunction. The question would be whether the petitioners should be added as parties. As has been observed by the Apex Court in the case of "Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay" referred supra, the addition of party is a discretion of the Court. According to me the discretion that is vested with the Court is a judicial discretion which has to be exercised as per judicial norms and legal principles and is not an arbitrary discretion. 7. It is also settled law that judgments of the Apex Court or this Court can not be read as Euclid theorem, they will have to be read in the context in which they are delivered. In case of "Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay" referred supra, the third party applicant therein had a commercial interest in the subject matter and the notice that was challenged did not relate to the 7 W.P.No.4081/11 structure i.e. the service station but was in relation to two chattels stated to have been erected by the plaintiffs therein unauthorisedly which according to the plaintiff were moveable on wheels and plates and the third party applicant therein had no interest in these chattels and the demolition of the same. In pursuance to the notice, the legal right of the third party applicant therein was not affected. In the present case, if the rights as is alleged by the petitioners are accepted then their rights would be affected by the decision of the Court. Even the trial Court has held in its order that it appears that the shop of the plaintiff is constructed on a public way. At the stage of considering the application U/o 1 Rule 10(2) of the C.P.C. the Courts are not required to go into the proof of the said averments. The same is required to be decided after the evidence is led. It is a matter of record that the petitioners had filed complaints. According to the petitioners the structure was removed and thereafter re- erected and the said structure is on the public way. The right of egress and ingress is affected 8 W.P.No.4081/11 and so also other easementary right. If the collusion takes place between the plaintiff and the defendants then it is the petitioners who would be affected. Apprehension was also spelt out by the petitioners in this regard in the application. The learned Single Judge of this Court in a case of "Chandrakant Dharma Bhonu Vs. Pandurang Ramchandra Dandekar and another" referred supra has held in similar facts that when unauthorised construction and the alleged encroachment directly affects the rights of the third party applicant then he is required to be added as a party. 8. In the present matter also taking into account the conspectus of the facts, it is manifest that the rights of the petitioners would be affected. In such circumstances, the petitioners are required to be added as parties. 9. In the result, the impugned order is quashed and set aside and application Exh.24 in RCS No.576/2010 is allowed. 9 W.P.No.4081/11 10. Rule made absolute in above terms. However, there shall be no order as to costs. 11. All the aforesaid observations are only prima facie in nature. The Court would decide the suit on its own merits dehors the observations made. (S.V.GANGAPURWALA,J.) asp/office/wp408111