//
you're reading...
legal issues

Or. 47 rule 1 C.P.C. = Review of it’s own judgement basing on fresh documents & fresh thoughts – not correct = Or.1, rule 10 impleading a party with out asking for any relief against him is maintainable as the very purpose of impleading is only for having full and final settlement and to avoid multiple proceedings = N.ANANTHA REDDY Petitioner(s) VERSUS ANSHU KATHURIA & ORS. Respondent(s) = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41043

 Or. 47 rule 1 C.P.C. = Review of it’s own judgement basing on fresh documents & fresh

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

thoughts – not correct – Review of it’s judgement arose only in case of patent errors occurred in earlier judgement but not on fresh out look of the case  – High court confirmed the order of lower court when it allowed the impleading petition – Later at the instance of petitioner and on fresh documents took fresh approach and remanded case to  lower court to dispose the case basing on documents filed – Apex court set aside the orders of review of high court and confirmed the orders of lower court =    

A careful look at the impugned order would  show  that  the

      High Court had a fresh look at  the  question  whether  the  appellant

      could be impleaded in the suit filed by the respondent No. 1  and,  in

      the light of the view which it took, it  recalled  its  earlier  order

      dated 08.06.2011. The course followed by the  High  Court  is  clearly

      flawed.  The  High  Court  exceeded   its   review   jurisdiction   by

      reconsidering the merits of the order  dated  08.06.2011.  The  review

      jurisdiction is extremely limited and unless there is mistake apparent

      on the face of the  record,  the  order/judgment  does  not  call  for

      review. The mistake apparent on record means that the mistake is  self

      evident, needs no search  and  stares  at  its  face.  Surely,  review

      jurisdiction is not an appeal in disguise. The review does not  permit

      rehearing of the matter on merits.

 

Or.1, rule 10 impleading a party with out asking for any relief against him is maintainable as the very purpose of impleading is only for having full and final settlement and to avoid multiple proceedings –  a neighbor is necessary party in a suit filed against municipality for  non violation building plan  –suit  for  declaration and perpetual  injunction  against  the  Greater  Hyderabad  Municipal Corporation (respondent No. 2 herein) and the Assistant  City  Planner (respondent  No.  3  herein).  In  the  suit,  the  respondent  No.  1

(plaintiff) prayed that notice dated 23.12.2009 issued  under  Section 452 of the  Greater  Hyderabad  Municipal  Corporation  Act,  1955  be declared as illegal, void and not  legally  tenable.  It  was  further prayed that the defendants (respondent Nos. 2 and 3  herein)  have  no right  to  interfere  with  the  construction  being  put  up  by  the plaintiff.   The  plaintiff  also  prayed  for  perpetual   injunction restraining the two defendants, their officers/officials/servants from interfering with the suit scheduled property and by directing them not to demolish or cause any damage to the suit schedule property. =

 

“No doubt, no relief is sought for against the proposed party in

           the suit.  The object of Order 1 Rule 10(2) C.P.C. to implead  a

           third party to the suit is that the dispute in the suit would be

           resolved in the presence of all, in order to avoid  multiplicity

           of proceedings. There must be some semblance  of  right  to  the

           proposed party. If the petitioner  violates  the  building  plan

           without leaving set backs, cellar etc., then certainly it  would

           cause inconvenience to the neighbours.  The  proposed  party  is

           one of the neighbours. Therefore, to safeguard his interest,  in

           view of the fact that he has got some semblance of right, though

           no relief is claimed against him,  he  would  be  necessary  and

           proper party to come on record.  That is  why  the  trial  Court

           rightly impleaded him as a party to the suit and I.A. and  there

           are no grounds to interfere  with  the  same.  The  revision  is

           devoid of merits and is liable to be dismissed.”

 

 

 11 .       In our view, the High Court was not  at  all  justified  to

      review the order dated 08.06.2011.

      12.        The impugned order dated 13.12.2011  is,  accordingly,  set

      aside. Appeals are allowed as above.  No costs.               

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10779-10780 OF 2013
(arising out of S.L.P. (Civil) Nos. 13098-13099/2012)
N.ANANTHA REDDY Petitioner(s)
VERSUS
ANSHU KATHURIA & ORS. Respondent(s)
J U D G M E N T
R.M. Lodha, J. :
Leave granted.
2. The respondent No. 1 herein filed a suit for declaration
and perpetual injunction against the Greater Hyderabad Municipal
Corporation (respondent No. 2 herein) and the Assistant City Planner
(respondent No. 3 herein). In the suit, the respondent No. 1
(plaintiff) prayed that notice dated 23.12.2009 issued under Section
452 of the Greater Hyderabad Municipal Corporation Act, 1955 be
declared as illegal, void and not legally tenable. It was further
prayed that the defendants (respondent Nos. 2 and 3 herein) have no
right to interfere with the construction being put up by the
plaintiff. The plaintiff also prayed for perpetual injunction
restraining the two defendants, their officers/officials/servants from
interfering with the suit scheduled property and by directing them not
to demolish or cause any damage to the suit schedule property.
3. The appellant, who is plaintiff’s neighbour, made
applications for his impleadment in the suit and the application for
interim relief. The applicant did not claim any right, title or
interest in the suit schedule property but claimed that there is
infringement of his right of light and air if the construction by the
plaintiff is commenced and completed and, therefore, he is a proper
party in the matter.
4. The trial court heard the plaintiff and the proposed party
and by order dated 20.07.2010 allowed the said applications. The trial
court, while allowing the said applications made by the present
appellant, observed as follows :-
“The claim of petitioner is that, though he is not
claiming right over the property of plaintiff, his grievance is
only about the construction being made by the plaintiff because
it is effecting his right for light and air. The objection of
the plaintiff is that because he is challenging the notice
issued by the Municipality in respect of the construction, since
the petitioner is not having any right over the suit property,
he is not necessary party. I have considered other submissions
also made and the citations relied by the either side. Under
Order 1 Rule 10 a party would become necessary party or proper
party if he is having only over the subject matter to be
adjudication under the suit and then can be impleaded. In this
case though the third party petitioner is not claiming any title
over the property. Even if the pleadings of the plaintiff have
to be considered, the title of the plaintiff over the suit
property is not in dispute. What is in dispute among the
plaintiff and the defendants already on record is about the
construction being made by the plaintiff. Because the
defendants already on record have said to have issued notice to
the plaintiff stating that the construction is illegal.
Challenging the said notice the present suit is filed. The
present suit is filed after withdrawing the previous suit for
injunction filed against Municipality said to be filed before
issuance of the notice under Section 452 of Municipal Act. In
that case the petitioner had already been impleaded on his
application as he was expressing the grievance of the
infringement of his right for light and air in view of the
construction of the plaintiff. Having considered the decisions
relied by either party to my considered opinion, the decision
relied by the third party petitioner is that similar facts as of
the present case on hand wherein the Court held that though the
said third party is not a necessary party, but he is proper
party in respect of his grievance to the suit proceedings there
in and ordered his impleading in the suit. The facts in the
decisions relied by the Learned Counsel for plaintiff are not
similar to the facts on hand. Therefore by following the
decisions relied by Learned Counsel for third party petitioner
in 2005 (6) ALD NOC 223 (Between : Neelam Ajit Vs. S. Suresh
Reddy and another), I hold that the third party petitioner can
be impleaded in the suit and as well as the application for
injunction as Defendant No. 3 and Respondent No. 3
respectively.”
5. The above order of the trial court was challenged by the
respondent No. 1 (plaintiff) before the High Court. The High Court,
after hearing the parties, by its order dated 08.06.2011 dismissed the
Civil Revision Petitions filed by the respondent No. 1 herein by
observing as follows :
“4. It is to be noted that the vendor of the plaintiff and the
vendor of the first respondent herein are neighbours, having
purchased common property and dividing the same into two
portions and one portion comprising an extent of 790 sq. yards
was purchased by the first respondent and the other portion
comprising of 580 sq. yards was purchased by the vendor of the
plaintiff. It is further stated that both the parties made
constructions in their respective plots and allegations and
counter allegations were made against one another alleging
deviations from the sanctioned plan and violation of the
building rules.
5. It is not disputed that previously in the similar
circumstances, this Court by common order dated 25.10.2010 in
CRP Nos. 2870 and 3882 of 2010, dismissed the said revision
petitions and confirmed the orders passed by the trial court,
permitting the first respondent to come on record as defendant
in the said suit OS No. 960 of 2010 and copy of the said order
is placed on record. The issue raised in the present revision
petitions virtually covered by the said earlier order dated
25.10.2010 in CRP Nos. 2870 and 3882 of 2010 and adopting the
reasons mentioned therein, the present revision petitions are
also dismissed.”
6. The respondent No. 1 then made applications for review of
the order of the High Court dated 08.06.2011.
7. The High Court by the impugned order recalled its earlier
order dated 08.06.2011 and directed the trial court to consider the
applications for impleadment afresh.
8. While recalling the order dated 08.06.2011, the High Court
observed thus :
“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 permitted 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.”
9. A careful look at the impugned order would show that the
High Court had a fresh look at the question whether the appellant
could be impleaded in the suit filed by the respondent No. 1 and, in
the light of the view which it took, it recalled its earlier order
dated 08.06.2011. The course followed by the High Court is clearly
flawed. The High Court exceeded its review jurisdiction by
reconsidering the merits of the order dated 08.06.2011. The review
jurisdiction is extremely limited and unless there is mistake apparent
on the face of the record, the order/judgment does not call for
review. The mistake apparent on record means that the mistake is self
evident, needs no search and stares at its face. Surely, review
jurisdiction is not an appeal in disguise. The review does not permit
rehearing of the matter on merits.
10. The order passed by the High Court on 08.06.2011, on a
careful reading, shows that the High Court instead of repeating the
reasons which it had given in other revision petitions being CRP Nos.
2870 and 3882 of 2010, while it was fully conscious of the fact that
those civil revisions arose from a different suit followed its order
in CRP Nos. 2870 and 3882 of 2010. The High Court was fully conscious
of the factual and legal position while it was considering the civil
revision petitions filed by the present respondent No. 1. In the
order upon which reliance was placed by the High Court while
dismissing the civil revision petitions, the High Court had noted thus
:-
“No doubt, no relief is sought for against the proposed party in
the suit. The object of Order 1 Rule 10(2) C.P.C. to implead a
third party to the suit is that the dispute in the suit would be
resolved in the presence of all, in order to avoid multiplicity
of proceedings. There must be some semblance of right to the
proposed party. If the petitioner violates the building plan
without leaving set backs, cellar etc., then certainly it would
cause inconvenience to the neighbours. The proposed party is
one of the neighbours. Therefore, to safeguard his interest, in
view of the fact that he has got some semblance of right, though
no relief is claimed against him, he would be necessary and
proper party to come on record. That is why the trial Court
rightly impleaded him as a party to the suit and I.A. and there
are no grounds to interfere with the same. The revision is
devoid of merits and is liable to be dismissed.”
11 . In our view, the High Court was not at all justified to
review the order dated 08.06.2011.
12. The impugned order dated 13.12.2011 is, accordingly, set
aside. Appeals are allowed as above. No costs.
……………………..J.
( R.M. LODHA )
NEW DELHI; ……………………..J.
DECEMBER 2, 2013 ( SHIVA KIRTI SINGH )

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,976,028 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,875 other followers

Follow advocatemmmohan on WordPress.com