1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.795 OF 2009 1. Smt. Guitabala Manohar Naik Parulekar, widow of Manohar Naik Parulekar, business. 2. Mrs. Rajeshree Manohar Naik Parulekar alias Rajani Umesh Bakta, major, married, and her husband, 3. Umesh Damodar Bakta, major, Businessman. 4. Smt. Geetanjali Sainath Patkar, 5. Sainath R. Patkar, (since deceased) Through legal representatives (a) Rahul Sainath Patkar, 23 years of age, (b) Miss Natasha Sainath Patkar, 18 years of age, 6. Sita Manohar Naik Parulekar, All major of age, and residents of Altinho, Mapusa, Goa. …. Petitioners V/s. 1. Corporation of City of Panaji, Through its Commissioner, Panaji, Goa. 2. Shri Antonio Sequeira Coutinho Pereira, resident of Mayem, Bicholim, Goa. …. Respondents Mr. J.P. Mulgaonkar, Advocate for the Petitioners. Mr. Shivan Dessai, Advocate for Respondent No.1. Mr. V.R. Tamba, Advocate for Respondent No.2. CORAM : N.A. BRITTO, J. DATE : 5th AUGUST, 2010 2 JUDGMENT : Heard. 2. The Writ Petitioners are the plaintiffs in Regular Civil Suit No.129/1993/B. The present Writ Petition is directed against order dated 27/08/2009 of the learned Civil Judge, Junior Division, at Panaji by which the respondent no.2 on his application dated 24/2/2009 for intervention, has been added as a party to the suit. 3. There is no dispute that there is a title suit pending between the plaintiffs and respondent no.2 bearing no.220/93/A in which the plaintiffs have an injunction in their favour. The present suit was filed by the plaintiffs against respondent no.1-Corporation of the City of Panaji, for injunction simpliciter against the defendants to restrain the Corporation from installing and/or permitting to install any structure, kiosk, etc. which was likely to interfere with the use of the foot path on the eastern and western side of the suit property. 4. The respondent no.2 contending that any orders that may be passed in the present suit concerning the suit property may directly or indirectly affect the interest of respondent no.2, filed the said application for intervention which came to be allowed by the impugned order dated 27/08/2009. The application came to be granted by the learned Civil 3 Judge holding that in case the dispute in the title suit is decided in favour of respondent no.2, then the decision of this suit should bind the respondent no.2. 5. Shri J. J. Mulgaonkar, the learned Counsel appearing on behalf of the plaintiffs submits that the title suit between the plaintiffs and respondent no.2 is regarding the suit property and the footpaths do not form part of the subject matter of the said civil suit and the plaintiffs' right to use the said footpaths is based on the plaintiff's right of possession of the suit property. Learned Counsel submits that the plaintiffs are the dominus litis and therefore could not be compelled to fight against the persons they do not propose to. Shri Mulgaonkar has further submitted that after the impugned order, the respondent no.2 has filed a written statement raising a plea that the suit of the plaintiffs, should be dismissed. 6. Learned Counsel Shri Mulgaonkar has placed reliance on two decisions of the Apex Court in the case of Ramesh Hirachand Kundanmal V/s. Municipal Corporation of Greater Bombay & Ors. (1992 (2) SCC 524) and Milk Specialties Ltd. V/s. Rajiv Singh (2005 (11)SCC 403). 7. In the first case, it has been held by the Apex Court that: 4 “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. A clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. 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 a person whose only object is to prosecute his own cause of action.” 8. In the second case, the Apex Court has held that the power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. 9. A preliminary objection was taken by Shri Tamba, learned Counsel appearing on behalf of respondent no.2 and that relates to the death of plaintiff no.5. An application to bring on record the legal 5 representatives of plaintiff no.5 was filed on 6/12/2008 and the same is pending before the learned trial Court. This Writ Petition has been filed by the plaintiffs along with the legal representatives of deceased plaintiff no.5 whose widow is otherwise on record as plaintiff no.4. The said application filed by the plaintiffs on 6/12/2008 is still pending. As the cause title in this Writ Petition did not tally with the cause title given in the impugned order, Shri Mulgaonkar filed an explanation/memorandum on 19/01/2009. In this memorandum it was stated by the learned Counsel that petitioners nos.5(a) and 5(b) have been brought on record as the legal representatives of deceased plaintiff no.5. However, the fact remains that the said application dated 6/12/2008 at Exhibit 9 is yet to be decided by the learned trial Court and I have no doubt in my mind that the same will be decided on its own merits by the learned trial Court. 10. Shri Mulgaonkar, learned Counsel appearing on behalf of the plaintiffs, submits that Counsel on behalf of the plaintiffs bonafidely believed that the said application at Exhibit 9 was already decided. Learned Counsel submits that the plaintiffs were not to derive any benefit from the said averments made in the memorandum dated 19/11/2009. Counsel, therefore, submits that because of that mistake the plaintiffs ought not to be made to suffer. Shri Tamba, the learned Counsel on behalf of Respondent no. 2 objects seriously to the said 6 memorandum, which according to the learned Counsel is based on falsehood. He submits that this Writ Petition be rejected on account of false averements made in the memorandum and in support of the said submission learned Counsel has placed reliance on an unreported judgment of this Court dated 16/07/2010 in First Appeal No.70/2010, filed by the respondent no.2. That was the case where the appeal which was barred by limitation was registered by the Registry without raising any objection, in the absence of an application for condonation of delay and the registration was ordered to be cancelled. In my view, the judgment dated 16/07/2010 has no application to the facts of the case. The other judgment is in K.D. Sharma V/s. Steel Authority of India Limited & Ors. (2008 (12) SCC 481), wherein the Apex Court observed that: “A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses any material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.” 11. I am not inclined to follow the above principle in the facts of this case. We much depend on the advocates and it was certainly expected of learned advocate Shri Mulgaonkar, who had signed the memorandum dated 19/11/2009 to state the correct position of the suit, when the memo 7 was filed in the Registry, that the application/Exhibit 9 was still pending before the learned trial Court. However, on account of the mistake of the learned Counsel, in my view, the plaintiffs ought not to be made to suffer. The plaintiffs are not expected to know the intricacies of law and procedure. Shri Tamba, learned Counsel appearing on behalf of respondent no.2 has otherwise not been able to show any provision of law by which the present Writ Petition could be said to be improperly constituted. The heirs of deceased plaintiff no.5 are parties to this Writ Petition, although they are yet to be formally brought on record in the said civil suit. This writ petition has been filed by the remaining plaintiffs as well as the legal representatives of deceased plaintiffs no.5. There is no prohibition in law that they alongwith others cannot challenge the impugned order unless they are first brought on record of the civil suit. No provision of law has been shown to the contrary. I, therefore, proceed to entertain this Writ Petition on merits of the same. 12. Admittedly, the plaintiffs are in possession of the suit property regarding which a title suit is pending between the plaintiffs and respondent no.2. Counsel on behalf of respondent no.2 has not been able to show that the adjoining foot paths are also part of the said suit property involved in the title suit between the plaintiffs and the respondent no.2. The plaintiffs in this suit, as already stated, only seek a restraint order against the Corporation of City of Panaji to restrain 8 them from installing or permitting the installation of any structures, kiosk, which are likely to interfere with their passage to the suit house and admittedly in their possession by virtue of temporary injunction. If the plaintiffs herein succeed in the said suit, respondent no.2 has nothing to loose, but respondent no.2 may gain something in case respondent no.2 succeeds in the title suit. The plaintiffs had sought no relief against respondent no.2 in the present civil suit. They sought relief only against the Corporation of City of Panaji. The respondent no.2, therefore, was not a necessary party to the suit nor his presence was necessary to effectually decide the controversy between the plaintiffs and the Corporation. The respondent no.2 was not at all to be affected if he was not added as a party. The power under Order 1, Rule 10(2), CPC to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under the said Rule a person may be added as a party to the suit when: (1) He ought to have been joined as plaintiff or defendant and is not joined so, or, (2) Without his presence the question in the suit can not be completely decided. 13. The case of Respondent no. 2 was not covered by Rule 10(2). In the case at hand, the respondent no.2 has no interest in the foot paths as he is not in possession of the suit property. He was not to suffer any 9 prejudice either, if he was not allowed to participate in the suit. The trial Court does not appear to have exercised the discretion correctly and therefore the impugned order calls for interference from this Court. 14. Consequently, this Writ Petition is allowed and the impugned order is set aside, with no order as to costs. N.A. BRITTO, J. NH/-