IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1247 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA Sd/-
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========================================================= JAYDEEP & CO. - Petitioner(s) Versus MAHARAJA SALT WORKS CO. LTD. AND ANOTHER ========================================================= Appearance :
MR BD KARIA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR MK VAKHARIA for Respondent(s) : 1, MS RV ACHARYA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date :25/02/2012 CAV JUDGMENT The challenge in the present petition under Article 227 of the Constitution is directed against the order dated 05.01.2007 below application Exh.21 passed by the learned Principal Civil Judge, Maliya Miyana, in Regular Civil Suit No.112 of 2006, rejecting the prayer of the present petitioner to be impleaded as party defendant in the suit.
2. The relevant facts available from the record of the the petition are that one Maharaja Salt Works Company Ltd., respondent No.1, instituted a civil suit on 30.12.2006 for declaration and permanent injunction that the defendant Paschim Gujarat Vij Company Limited had no right or authority to lay electricity poles and pass electricity lines from the land of the plaintiff bearing Survey No.86 at Village Bodki, Tal.MaliyaMiyana. The plaintiff filed interim injunction application also. It was pleaded in the plaint that the defendant company had commenced the work on plaintiff's land for providing electricity connection to a third party and electricity poles and lines were being erected from his land, and it was contended that the work was being done without his consent and against the rules and regulations.
2.1 In replycumwritten statement, the defendant electricity company amongst other averments defended its action, and further stated that Jaydeep and Company, the present petitioner, had applied for new industrial electricity connection of 60 HP for their land, for which three km. long line with capacity of 11,000 Volt was required to be laid and for that the agreement was executed and the party had deposited the necessary amount towards the charges. It was contended that the lines were required to be setup so as to cause minimum line loss and for doing the work, the company had authority in law.
2.2 The panchnama recorded by the Court Commissioner disclosed that the work of laying poles and setting up electricity lines was in progress, that some poles were already erected and the necessary material was lying on the plaintiff's land. From the pleadings on record, it is, therefore, seen that when the plaintiff instituted the suit, the work of laying the electricity lines had started. The plaintiff was within the knowledge thereof as per his own averments in the plaint. It is an undisputed position among the parties that the electricity lines from the land of respondent No.1 – original plaintiff has already been laid and the electricity supply to the petitioner has become operational.
3. The petitioner on 02.01.2007 filed his application Exh.21 under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 ('the CPC', for sake of brevity) seeking to join as party in the suit. It was submitted inter alia by the petitioner that it was allotted 30,000 sq mtrs land by the Collector for staking and crushing the salt and the machineries at the site were also installed. It was averred that its application for electricity connection on the allotted land was made prior to the suit of the plaintiff and necessary charges of Rs.7,82,802/ to the electricity company were also paid. It was contended that in the suit of the plaintiff, the petitioner was necessary and proper party. It also appears from the record that on 30.12.2006 the petitioner had moved an application before the trial Court claiming to be a necessary party in the proceedings. Exh.21 application was contested by the original plaintiff on different grounds by filing a reply.
4. This Court heard the learned advocate Mr. B. D. Karia for the petitioner, learned advocate Mr. M. K. Vakharia for respondent No.1 original plaintiff and learned advocate Ms. R. V. Acharya for respondent No.2 electricity company at length for their respective submissions.
4.1 Learned advocate for the petitioner submitted that the petitioner had direct interest in the suit controversy and is necessary party. According to him, the interest of the petitioner in the suit was substantial and not peripheral as any decree that may be passed would prejudice its rights and interest. It was submitted that in the facts of the case the rule of “present interest” did not apply or could not have been applied mechanically. He submitted that the learned Judge failed to properly consider the scope and object of Order 1 Rule 10 of CPC and acted illegally and with material irregularity in rejecting Exh.21 application.
4.2 Learned advocate for respondent No.1 – original plaintiff submitted that the suit controversy was limited between the plaintiff and the defendant Electricity Company to which the present petitioner was in no way concerned. It was submitted that the action of the defendant was against law as no consent of the plaintiff was obtained for passing electricity lines from his land. He submitted that the issue in the suit was whether the electricity company had right and authority to pass electricity lines from the land of the plaintiff and that question can be adjudicated without the presence of the present petitioner. According to him, the petitioner could not claim any interest in the suit and could pursue his separate remedies when aggrieved. He submitted that no person could be joined as party in the suit when he has no legal interest.
4.3 Learned advocate for the electricity company original defendant pointed out only factual aspects involved in the case particularly drawing attention to the detailed report for alternate passing of electricity lines which was on record and which pointed out various technical hindrances and about additional expenditure needed to be incurred for laying electricity lines in alternative manner.
5. In the facts of the case, whether the petitioner is entitled to be joined as party is the question to be considered. Order 1 Rule 10(2) of the CPC empowers the court either upon or without application of either party, at any state of the proceedings, to join any person who ought to have been joined whether it is defendant or plaintiff or whose presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions raised in the suit.
5.1 The legal parameters for permitting impleadment of a party under this provision are well settled. In Savitri Devi vs. District Judge, Gorakhpur and others [(1999) 2 SCC 577], it was held by the Supreme Court that Order 1 Rule 10 of CPC enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit.
5.2 In Sarvindarsing vs. Dalip [1996 (6) SCALE 59], the legal concept of “ a necessary party” and “proper party” were reiterated. A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for complete and final decision of the question involved in the proceedings.
5.3 In Amit Kumar Shaw vs. Farida Khatoon [ (2005) 11 SCC 403], the Apex Court held that under Order 1 Rule 10, a person may be added as a party to a suit in the following two cases, (i) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (ii) when, without his presence, the questions in the suit cannot be completely decided.
It was further observed that, “10. 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.”
6. The petitioner wanting to be joined as a party in the suit is a person who is allotted plot on 09.01.2002 by an order of Collector for salt crushing and staking industry. The application of and allotment to the petitioner were prior to the institution of plaintiff's suit. The petitioner was thereupon granted construction permission on the land allotted to him. He afterwards applied for electricity connection for industrial purpose under the rules and regulations of the defendant electricity company and paid necessary charges and fees. The defendant company has for the purpose of providing electricity connection to the petitioner on its land, which is situated adjacent to and after the land of the plaintiff, laid the lines and erected the poles which passes through the plaintiff's land. The work of laying the lines was completed and the electricity supply to the petitioner became operational. The petitioner has been utilizing the electricity at present.
6.1 In above view, as the suit is for the relief for declaration that defendant's action of laying the electricity lines is without any law and as those lines are laid to supply the electricity to the petitioner, where in that suit it would be far fetched to treat the petitioner to be a stranger. Any order or decree which may be passed in the suit, would touch upon the interest of the petitioner and affect its rights. Having regard to the admitted fact that the electricity supply to the petitioner has also been commissioned, it can also be said that the petitioner has got 'present interest' in the subject matter of the suit. In other words, the petitioner having become a beneficiary of the electricity lines laid upon his application for the same, he has a direct interest in the outcome of the suit. In the circumstances, it cannot be gainsaid that the petitioner has got legal interest in the subject matter of the suit.
6.2 Considering the primary object of addition a party to a suit, which is to facilitate the Court to have adjudication on the suit controversy fully by settling all the questions involved in the suit, the presence of the petitioner as party defendant is justified as it will enable the Court to decide the suit dispute effectually, effectively and fully.
6.3 In Ramesh Hiranand Kundanlal vs. The Municipal Corporation of Greater Bombay and ors. [ JT 1992 (2) SC 116], the Court observed on the scope of Order 1 Rule 10 of the CPC as under:
“ 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 interest 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.”
6.4 From the decision in J. J. Lal Pvt. Ltd. vs. M.R.Murli and another [AIR 2002 SC 1061] and in Savitri Devi (supra), a principle also emerges that avoidence of a multiplicity of proceedings is a desirable consequence and one of the objects of Order 1 Rule 10. In this view also, it is appropriate to permit the petitioner to become a party in the suit, as it will help/prevent multiplicity of litigation. Moreover, the petitioner's presence as a party is not going to be prejudicial in any way to the plaintiff in his suit. On the contrary, as noted above, it will facilitate the Court to effectively adjudicate and take a wholesome decision.
6.5 The discretion available to the Court under provision of Order 1 Rule 10 of the CPC is a judicial discretion to be exercised on sound and judicious principles so as to subserve the object of the provision. The reasoning of the impugned order is erroneous that the petitioner had no direct or indirect interest in the suit and that no cause of action had arisen against it, and therefore he was not required to be joined as party. As is revealed from the record, when the suit was instituted, the lines were in the process of being laid and therefore, that fact can be said to be connected with the facts encompassing and comprising of the cause of action for the plaintiff. For all the above reasons, the petitioner is entitled to be joined as party in the suit.
7. In the result, the impugned order dated 05.01.2007 below Exh.21 of the learned Principal Civil Judge, Maliya (Miyana) in Regular Civil Suit No.112 of 2006 is hereby set aside. Consequentially, application Exh.21 of the petitioner shall stand allowed. The petitioner shall stand allowed. The petitioner will be added as party defendant at his own costs in the proceedings of Regular Civil Suit No.112 of 2006 before the trial Court. Rule is made absolute.
7.1 Mr. M. M. Barot, learned advocate for Mr. Vakharia, learned advocate for respondent No.1, at this stage, requested for stay of the judgment. In view of reasons recorded in the judgment, the prayer is rejected.
Amit [N. V. ANJARIA, J.]