IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL WRIT PETITION NO.52398 OF 2018 (GM-CPC) BETWEEN:
1. NAGARAJ S/O VEERAIAH AGED ABOUT 70 YEARS RET.SUPERINTENDENT FOREST DEPARTMENT R/AT NO.793 “VANASRI”
OPP. TO SADHUMUTT, WARD NO.8, CHICKABALLAPUR – 562 101 2. B.MANJUNATH S/O LATE BAJJANNA AGED ABOUT 52 YEARS #2364, VARASIDHI NILAYA OPP. TO YOGINARAYANA TEMPLE WARD NO.8, CHICKABALLAPUR – 562 101 3. SRI B.F.MOHAMMED HANEEF S/O LATE FAKRUDHIN SAB AGED ABOUT 67 YEARS R/AT #413, OPO ROAD 3RD CROSS, CHICKABALLAPUR – 562 101 4. GANGADHAR B.C. S/O CHINNAPPA AGED ABOUT 49 YEARS R/O BEEDIGANAHALLI VILLAGE DODDAMARALI POST NANDI HOBLI, CHICKABALLAPUR – 562 101 5. P.S.RAGHU S/O LATE P.C.SRINIVAS AGED ABOUT 55 YEARS NANDANI MILK VENDOR, BESIDE DR.SATHYA CLINIC OPP. TO CHENNARAYASWAMY TEMPLE NEAR KRISHNA TALIES OPP. TO SADHUMUTT, WARD NO.8 CHICKABALLAPUR – 562 101 ...PETITIONERS (BY SRI S.N.ASWATHANARAYANA, ADV.) AND 1. THE COMMISSIONER CITY MUNICIPALITY CHICKABALLAPUR – 562 101 2. SMT.VENKATALAKSHMAMMA W/O VENKATARAMAREDDY AGED ABOUT 60 YEARS R/O WARD NO.9, OPP. SADHUMUTT GANGANAMIDDE ROAD CHICKABALLAPUR – 562 101 ...RESPONDENTS (BY SRI SRIVATSA B.R., ADV. FOR SRI SUBRAMANYA R., ADV. FOR R1; SRI ARAVIND REDDY H., ADV. FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.10.2018 (ANNEXURE-H) PASSED ON IA BY REJECTING THE APPLICATION FILED UNDER ORDER I RULE VIII ‘A’ CPC SEEKING FOR IMPLEADING IN OS. NO.289/2017 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT CHICKBALLAPUR.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R “Whether the petitioners are the persons interested in question of law directly and substantially involved in O.S.No.289/2017 on the file of Principal Civil Judge and J.M.F.C., Chikkaballapur?” is the question involved in this case.
2. Second respondent filed O.S.No.289/2017 against the first respondent before the Civil Judge, Chikkaballapur, for perpetual injunction against removal or demolition of the western compound wall of her residential building bearing khata No.1681/1524 situated in Ward No.9 of Chikkaballapura Town. She contended that she constructed the house under the building licence dated 18.10.1989 issued by the first respondent. She further contended that at the instigation of her neighbours, the first respondent is trying to demolish the western side compound wall illegally, thus, sought for perpetual injunction.
3. The impugned order Annexure-H indicates that though the first respondent appeared in the suit has not filed written statement to contest the suit. Petitioners filed Interlocutory Application Annexure-F in the said suit under Order I Rule 8A read with Section 151 of CPC, contending that between their house and the house of the plaintiff, 15 feet wide public road situates to access the main road. They further contended that respondent No.2 has constructed compound wall encroaching over 2 feet area of the public road thereby their right to way is affected and sought to come on record to assist the court for effectual adjudication of the matter.
4. Respondent No.2 contested the said application.
5. The Trial Court by the impugned order Annexure-H rejected the said application on the ground that permitting the petitioners to come on record enlarges the scope of the suit and if they have any grievance against the respondents, they can file a separate suit.
6. Sri.S.N.Aswathanarayana, learned Counsel for the petitioners relying on the judgment of the Supreme Court in Municipal Council, Hansi, District Hissar, Haryana –vs- Mani Raj and Others (2001) 4 SCC 172 submits that the right of way of the petitioners is affected by the action of the second respondent. He further submits that since the first respondent is dormant, if the petitioners are impleaded, they can assist the court in adjudicating whether the plaintiff can maintain such suit and whether the possession of the plaintiff is lawful.
7. Sri.B.R.Srivatsa, learned Counsel for respondent No.1 submits that second respondent cannot maintain such suit as there is a remedy of seeking revision of the order before the Revisional Authority under Section 322 of the Karnataka Municipalities Act, 1964.
8. Per contra, Sri.Aravind Reddy.H., learned Counsel for respondent No.2 submits that petitioners are not the persons interested in any question of law, which is directly or substantially an issue in the suit. He further submits that the judgment relied upon by the learned Counsel for the petitioners is not applicable to the facts of the case on hand.
9. Order I Rule 8A CPC reads as follows:
“8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings. - While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.”
10. Plaintiff also admits in the plaint that abutting the compound wall in question, there is a public road. She claims that she has lawfully constructed the compound wall and the petitioners herein cannot demolish that. She herself produces the copies of the notices issued by the first respondent for removal of encroachment.
11. Whether respondent No.2 could maintain such suit and the construction of the compound wall in question is lawful are the questions of law involved in the suit. In view of the allegation that the construction of the compound wall is an encroachment on the public road, the public interest is involved in the case. Therefore, it is necessary to allow the applicants to present their opinion on the aforesaid questions of law.
12. The Hon’ble Supreme Court in Municipal Council, Hansi’s case referred to supra held as follows:
“5. We have considered the submissions made by the learned counsel for the parties. We do not wish to examine and express opinion as to the respective contentions on merits touching the question of title over the property in dispute in the view we are taking. It cannot be disputed that the appellant is in possession of the disputed property. It was not party in the award case and the earlier two orders passed on 11.1.1971 and 26.8.1993 on the basis of which direction was given to the appellant to deliver possession of the disputed property. In the circumstances, the application made by the appellant ought to have been allowed when the direction adversely and seriously affected the valuable rights of the appellant over the immovable property in dispute. We are of the view that the High Court committed a manifest error in rejecting the application filed by the appellant, seeking intervention in the award case. The application of the appellant ought not have been dismissed on the ground of delay and latches having regard to the facts and circumstances of the case and particularly when the appellant was not a party to the earlier orders. The appellant was denied opportunity of putting forth its case before the High Court.”
(emphasis supplied) 13. Having regard to the aforesaid judgment and the facts of the case, the petitioners are clearly covered under Order I Rule 8A CPC and the Trial Court committed error in rejecting the application.
Therefore, the petition is allowed. The impugned order Annexure-H dated 6.10.2018 in O.S.No.289/2017 passed by the Principal Civil Judge and J.M.F.C. at Chikkaballapur, is hereby quashed.
The application filed by the petitioners in the said suit under Order I Rule 8A CPC to come on record as co-defendants is hereby allowed.
Sd/- JUDGE KNM/-