1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4124 of 2009 (Ibrahim @ Babuseth Isani and others v. State of Maharashtra and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A.S. Chandurkar, Advocate for Petitioners. Coram : R.C. Chavan, J. Dated : 25 th September, 2009 This petition was sought to be urgently circulated and listed before me without removing the office objections. It is heard subject to removal of the objections. The petitioners are aggrieved by the order of the learned Civil Judge, Senior Division, Darwha, rejecting their application for intervention in a suit filed by respondent Nos.4 to 28 against respondent Nos.1 to 3. The petitioners seem to have approached the Sub-Divisional Officer under the provisions of the Land Revenue Code as well as the Criminal Procedure Code, complaining of activities of the plaintiffs on 2 field survey no.150. The Sub-Divisional Officer had held in favour of the petitioners and restrained the activities of the plaintiffs on field survey no.150. The plaintiffs, therefore, filed a suit against the Tahsildar, Sub-Divisional Officer, and the State of Maharashtra for the following reliefs : “(a) Declare that whatever order allegedly passed by the defendant No.2 for sealing and demolition of suit shops is illegal and it may be set aside. (b) Permanently restrain by granting injunction in mandatory form directing the defendant Nos.2 and 3 to remove the seals affixed by them to the suit shops. (c) Permanently restrain the defendant Nos.2 and 3 from disturbing the possession of the plaintiffs over suit shops. (d) cost of the suit may be saddled on the defendant Nos.2 and 3. (e) Grant any other relief to the plaintiffs, for which, in the circumstances of the case, they are found entitled.” In that suit, the learned Trial Judge framed the following issues : “1) Do plaintiffs prove that the suit shops are in Survey No.150 and they are in lawful possession? 3 2) Do the plaintiffs prove that order passed by defendant No.2 is illegal? 3) Whether the plaintiffs are entitled to declaration and injunction? 4) What order, reliefs and decree?” The petitioners filed an application for being allowed to intervene in the suit as defendants. This application was rejected by the learned Trial Judge by his impugned order on the ground that one Sayyad Azizuddin had also filed a similar application in the past, which had been rejected on merits. The learned Trial Judge further observed that if the applicants wanted to intervene for public good, then why they did not take appropriate action against the plaintiffs, who raised the construction threatening public health. The learned counsel for the petitioners submitted that the reasons given by the learned Trial Judge in his order are irrelevant. The learned Trial Judge should have considered whether the petitioners’ presence in the suit was necessary for adjudication of the questions involved. He submitted that since the orders, which are questioned in the suit, were passed specifically at the instance of the petitioners, the petitioners are interested persons and, therefore, they should have been joined as 4 defendants. He placed reliance on the judgment of the Supreme Court in Ramesh Hiranand Kundanmal v. The Municipal Corporation of Greater Bombay and others, reported at 1992(1) Scale 530. In paras 8 and 14 of the judgment, the Court observed as under : “8. The case really turns on the true construction of the Rule in particular the meaning of the words “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.” The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions.” “14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main 5 objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd., (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dolfus Mieg et Compagnie S.A. v. Bank of 6 England, (1950) 2 All E.R. 611, that their true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:- “The test is ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.’ “ It is not clear as to how these observations would help the petitioners’ cause. If the petitioners have any cause of their own, they can espouse it by legal proceedings. Since a judgment of a Civil Court in a suit of this nature is a judgment in persona, there is no question of interest of petitioners being adversely affected. The contention of the learned counsel for the petitioners that joinder of the petitioners is necessary to avoid multiplicity of the suits, is not so weighty as to force upon the plaintiffs, someone whom they do not want in their lis. The plaintiffs being dominus litus and being ready to suffer the consequences of having a decree against respondent Nos.1 to 3 without the petitioners being parties to the suit, they cannot be compelled to have the present petitioners as defendants. 7 The order passed by the learned Trial Judge, therefore, does not call for interference, though may be for reasons which he had not articulated. The petition is, therefore, dismissed. Judge. pdl