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Leticia E. Dos M. Simoes v/s Suresh Tukaram Shirodkar and Others

    Writ Petition No. 2494 of 2021
    Decided On, 01 March 2022
    At, In the High Court of Bombay at Goa
    By, THE HONORABLE JUSTICE: MANISH PITALE
    By, J.
    For Petitioner: C. Padgaonkar and Apeksha Kaloke, Advocates And For Respondents: V. Parsekar, Advocate


Judgment Text

1. By this Writ Petition, the Petitioner, (original complainant), has challenged Order dated 20.10.2021, passed by the Court of Civil Judge, Junior Division (hereinafter referred to as 'the Trial Court'), whereby an application filed on behalf of Respondent nos. 1 and 2 under Order 1 Rule 10 of the Code of Civil Procedure Code (CPC) for addition of Communidade of Nerul as a Defendant, at exhibit D-21, has been allowed. Accordingly, the said Communidade is directed to be impleaded as defendant no. 3 in the suit.

2. Mr. Padgaonkar, learned Counsel appearing for the Petitioner, submits that the Communidade is neither a necessary nor a proper party in the suit. It is submitted that the Petitioner has filed a suit simpliciter for permanent injunction against the Respondents seeking an injunction restraining the Respondents from disturbing the possession of the Petitioner in the suit property, which is said to be located in survey no. 120/1 and 110/9 of Village Panchayat Nerul. The Petitioner has proceeded in the suit on the basis that she is in possession of the suit property as the same was leased to her late husband by the aforesaid Communidade in the year 1967. It is further pointed out that the Respondents had earlier moved an application under Order 7 Rule 11 of the CPC, seeking rejection of the plaint on the ground that the Communidade was a necessary party. The said application was dismissed and Civil Revision Application no. 53/2019 filed by the Respondents before this Court was also dismissed, thereby confirming the findings of the Trial Court. According to the learned Counsel for the Petitioner, the aforesaid Order had attained finality. It is further submitted that the Communidade is not even a proper party in the aforesaid suit, considering the pleadings in the plaint, the prayer sought by the Petitioner and also the pleadings in written statement of the Respondents. Reliance is placed on Judgments of the Hon'ble Supreme Court in the case of Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre and Hotels Pvt. Ltd. & Ors. (2010) 7 SCC 417 and Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524, to contend that the Respondents could call the responsible Officer/Attorney of the Communidade as a witness in support of their contentions in the pending suit. It is further submitted that the Petitioner is the dominus litis and this aspect is also ignored by the Trial Court whilst passing the impugned Order.

3. On the other hand, Mr. Parsekar, learned Counsel appearing for the Respondents has submitted that proper appreciation of Order 1 Rule 10 of the CPC, would show that Communidade is certainly a proper party in the suit because the presence of the Communidade is necessary to effectually and completely decide all the questions that arise for consideration in the suit.

4. Learned Counsel invited attention of this Court to the aforesaid pleadings before the Court below as well as certain interim orders passed in the suit to contend that the Communidade is recorded as the owner of the suit property in Form I and XIV and further that the Petitioner is proceeding on the basis that her possession is lawful for the reason that the Communidade purportedly put her late husband in possession of the suit properties on the basis of a lease executed in his favour. It was submitted that if the said stand of the Petitioners was to be tested, the presence of the Communidade was necessary. Reliance was placed on the Judgment of the Hon'ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (Dec.) & Ors. (2017) 9 SCC 700 and the Judgment of the Himachal Pradesh High Court in the case of Shanti Sharma vs. Shanti Sharma 2004 2 HLJ 1001.

5. Heard learned Counsel appearing for the parties and perused the material on record. There can be no quarrel with the proposition adverted to by the learned Counsel appearing for the rival parties in the context of Order 1 Rule 10 of the CPC. It is settled law that a party is to be added in the pending proceedings if it is a necessary or proper party and presence of such a party is found by the Court to be necessary for effectually and completely adjudicating and settling the questions involved in the suit.

6. In the present Petition, a perusal of the plaint would show that the suit is for simpliciter injunction, seeking an order of restraint against the Respondents from interfering or disturbing the possession of the Petitioner in the suit property. It is stated in paragraph 3 of the plaint that the suit property was leased by the Communidade to the latehusband of the Petitioner. It is on this basis that the Petitioner claims relief of injunction. It is relevant that there is no prayer for declaration in the suit.

7. The Respondents also claim right of possession in the suit property on the basis that they also happen to be tenants of the Communidade. It is further claimed that Form I and XIV shows that the Communidade is the owner of the suit property. It is on this basis that the Respondents claim that the presence of the Communidade is necessary for a proper adjudication of the questions that arise in the pending suit.

8. Insofar as the Communidade being a necessary party, as noted above, the said question has been put to rest by dismissal of Civil Revision Application No. 53 of 2019 by this Court, whereby Order passed by the Trial Court rejecting the plea of the Respondents about the Communidade being a necessary party, has been confirmed.

9. Insofar as the Communidade being a proper party, it is strenuously urged on behalf of the Respondent that since the name of the Communidade is reflecting in the Form I and XIV and the Petitioner herself claims to be in possession of the suit property on the basis that, the said property was allegedly leased by the Communidade to her late husband, the questions that would arise for consideration in the pending suit could be resolved only in the presence of the Communidade.

10. This Court has perused the pleadings of the parties. Considering the nature of pleadings and the reliefs sought by the Petitioner, it is found that no relief is claimed against the Communidade. The Petitioner has proceeded on the basis of the statement in paragraph 3 of the plaint. The question that arises for consideration in the pending suit would be the entitlement of the Petitioner to claim injunction simpliciter as against the Respondents. The Petitioner has proceeded on the basis that she is validly in possession of the suit property and that the Respondents cannot disturb her peaceful possession.

11. The nature of relief claimed in the suit and the stand taken by the rival parties do not indicate in any manner that the questions that would arise for consideration can be decided necessarily in the presence of the Communidade as a defendant. The emphasis placed on the Communidade being recorded as an owner in Form I and XIV is misplaced because no declaration is sought by the Petitioner. The Communidade could certainly bring material before the Court on the question of the right of the Petitioner to continue in possession or seek a decree of permanent injunction, if the Respondents choose to bring a responsible Officer or Attorney of the Communidade as a witness in the suit. This is clearly indicated in the Judgment of the Supreme Court in the case of Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay (supra), wherein it is held as follows:

"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 objectives. 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 questions 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 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."

12. It is further found that no relief is sought against the Communidade or the relief sought in the suit cannot be said to be impinging on any right of the Communidade for it to be present as a defendant in the pending suit. It is an admitted position that proceeding pertaining to declaration of tenancy under Section 7 of the Goa Daman and Diu Agricultural Tenancy Act, 1964, is pending, which was initiated by the Petitioner before the Mamlatdar. The said controversy would be decided on its own merits by the Mamlatdar.

13. There can be no quarrel with the proposition laid down in the Judgments on which learned Counsel appearing for the Respondents has placed reliance, stating the position of law in the contex

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t of Order 1 Rule 10 of CPC and the true purport of the expression "it could settle all questions involved". But, this Court is of the opinion that the questions involved in the present suit would not depend upon the presence of the Communidade as defendant for the Court to completely and effectually decide such questions. On this aspect of the matter, the issue was not correctly adjudicated by the Trial Court. The observations made in paragraph 14 of the impugned Order cannot be sustained in the light of the position of law under Order 1 Rule 10 of the CPC and the conclusion that this Court has reached that the Communidade cannot be said to be a proper party in the present suit. It is stated that the Respondents, if so desire, could certainly call the Officer/Attorney of the Communidade as a witness of the respondents. 14. In view of the above, the Petition is allowed. The impugned order is quashed and set aside. The application filed by Respondent nos. 1 and 2, at exhibit D-21, stands dismissed.
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