Civil Application No.3183 of 2003,Second Appeal No.19 of 2002

8th July, 2004

Petitioner Counsel: Shri. V. J. DIXIT
Respondent Counsel: Shri. U. S. MALTE

JUDGMENT

JUDGMENT :- The applicant has moved this civil application on 19th April, 2003. Second Appeal No.19/2002 is filed in this court on behalf of the applicant on 10th January, 2002. The present applicant was the plaintiff in the R.C.S. No.1095/1991 filed in the court of learned Civil Judge Junior Division, Aurangabad. The nature of the suit, was for declaration and perpetual injunction restraining the sole defendant from interfering the peaceful possession and enjoyment of the plaintiff over the suit property. The suit came to be filed on 19-12-1991. The court at the first instance, after recording the evidence of the parties, decreed the suit of the plaintiff by judgment and decree dt.30th November, 1996. This decree passed in R.C.S. No.1095/1991 was challenged by filing first appeal by the defendant bearing Regular Civil Appeal No.186/1999 in the court of learned District Judge, Aurangabad. The learned 3rd Additional District Judge, after hearing the parties allowed the appeal by judgment and decree dated 27th September, 2001. The first appellate court quashed and set aside the judgment and decree passed by the trial court. Apart from this, the first appellate court also directed an enquiry, reference to which is made by the learned Judge in para 13 of his judgment. This judgment and decree passed by the Additional District Judge, Aurangabad in Regular Civil Appeal No.186/1999 is challenged in this court by way of the Second Appeal No.19/2002.

2. The plaintiff is a Trust registered under the provisions of Bombay Public Trusts Act. The lessor of the plaintiff admittedly is Jai Vishwabharti Co-operative Housing Society Ltd., Aurangabad. While recording the evidence, the plaintiff filed an application alongwith list of documents Exh.25 on 9-7-1992. Alongwith this list of documents, 3 documents, which are strongly relied on behalf of the plaintiff, were placed on record before the learned Civil Judge, Senior Division. Exh.54 is an acknowledgement dated 13-7-1986 issued by the defendant in favour of Jai Vishwabharti Co-operative Housing Society Ltd., regarding application for permission of construction. The document at Exh.55 filed by the plaintiff is a general receipt issued by the defendant in token of receipt of Rs.1,000/- on 9-11-1984 in favour of Jai Vishwabharti Co-operative Housing Society Ltd. Payment of Rs.1,000/- is accepted by the defendant Corporation towards security deposit. The third document at Exh.56 is a receipt for an amount of Rs.440/- issued by the defendant/Corporation on account of building permission. This receipt is also in the name of the Secretary, Jai Vishwabharti Co-operative Housing Society.

3. In the background of above noted facts, the present civil application is filed on behalf of the appellant/plaintiff. In the application, in para 6 it is contended that the respondent by letter dt.4-5-1991 had given proposal to the lessor of the plaintiff, namely, Jai Vishwabharti Co-operative Housing Society Ltd., Aurangabad (hereinafter referred to as "the lessor" for the sake of brevity) to allot land in substitute to the present suit property. According to the applicant, prima facie, the Municipal Corporation is not happy with the fact that the lessor has allotted the plot in favour of the petitioner. The petitioner has raised substantial points in the second appeal with regard to ownership of the society and the right of the lessor to allot the said plot. It is clarified that, in the appeal as well this civil application, there is a sole respondent/original defendant. In this application, the plaintiff is seeking addition of the defendant No.2 i.e. the lessor. It has been clarified by the applicant by annexing schedule to this application in the title of the proposed amendment. In my view, this is an application filed by the applicant seeking addition of party i.e. defendant, who is the lessor of the applicant. In para.7 of the application, it is pleaded that the respondent transferred 0.72 Hectare to the Aurangabad Municipal Corporation by Gift Deed as per entry No.4411 made on 28-10-1970 of site No.149 and the said land was not shown on the plan submitted by the society (lessor). It is also pleaded in para.7 that as per the Gift Deed executed in favour of the respondent No.1 the plots having Nos.166 to 172 were covered under the open space shown in the lay out to the extent of 0.72 hectare. It appears that the Corporation informed that since the property was already handed over the Corporation, on 28-10-1970, Plot Nos.166 to 172 were not owned by the society and, therefore, housing society could not do anything. Plot Nos.162 to 165 from the western side as shown in site No.148 were also affected due to the reservation of plot for the school in the development plan. It was, therefore, informed that encroachment as shown in the said communication, be removed by the society. The petitioner has annexed a copy of the communication dated 10-5-1991 sent by the Commissioner of Aurangabad Municipal Corporation.

4. It is then pleaded in para.8 that the defendant/Corporation by communication dt.20-8-1991 informed the President of the Lessor, pointing out that Plot CTS No.15689 was handed over by the society to the petitioner illegally as the society has no right to transfer the property. Copy of the said letter is placed on record alongwith the civil application.

5. Para.10 of the civil application then refers to the reply affidavit filed on behalf of the respondent in Second Appeal No.19/2002. In response to the reply affidavit, it is pleaded that the entry in the PR Card in the name of the lessor, is referred to an area to the extent of 3334 sq. mtrs. in the name of Tulja Shikshan Sanstha shown in site No.148. It is explained in this para.10 that if the area allotted to Tulja Bhavani Education Institution is excluded from the total area of 0.72 hectare, wherein plots Nos.166 to 172 were proposed, the total area of open space remained as 3856 sq. mtrs. Further, offer of the society to the respondent is being pleaded in the latter part of para.9. Then, in para.10, the allotment of 525 sq. mtrs., to the present applicant is being referred to, and despite this allotment, it is pleaded that the land, which remained as open space comes to 3331 sq. mtrs. and if the said land allotted in favour of the respondent Corporation is considered, the whole controversy would be finished and there will be no action on the part of the Aurangabad Municipal Corporation to demolish the present structure of the petitioner society. The applicant, therefore, in para.11 of the application, refers to the statement of entire plots and open spaces in the entire lay out of Jai Vishwabharti Co-operative House Society i.e. the lessor. The said copy is annexed to the civil application.

6. Referring to this documents, it is pleaded that the total land allotted to the lessor as per the sanctioned plan is 20.335 Acres = 8.232 Hectares and the open space as shown in the site plan is to the extent of 3.490 Acres = 1.412 Hectares. In para.10 it is tried to be depicted that open space to the extent of 10% in the plan is maintained. Lastly, it is pleaded that considering the open space shown in the plan, there is no need to touch the structure of the petitioner on the ground that it was unauthorised and constructed in the open space.

7. In the background of these pleadings in para.12, necessity of allowing the applicant to join the said lessor as respondent/defendant is sought for.

8. According to the applicant, the amendment as proposed in the plaint, is necessary. In the background of these pleadings, in para.14, permission is sought to add the lessor as party defendant in the plaint in consonance thereof, the said party, it was further requested, to be allowed to be joined as respondent No.2 in the second appeal filed in this court.

9. I have referred to the pleading in the application. In response to these pleading, affidavit-in-reply is filed on behalf of the respondent/defendant as well as the proposed lessor. In the affidavit-in-reply of the original defendant, i.e. the Aurangabad Municipal Corporation (hereinafter referred to as "the Corporation" for sake of brevity), the application is resisted. After replying the pleading in the application regarding open shape, it is submitted in para.8 of the reply affidavit, that in the absence of the pleadings before the court and the issue framed in regard thereof, it is not permissible to add any new party by changing the total nature of the suit at this stage. According to the respondent/defendant, the contentions are beyond the limitation and are at belated stage. According to the respondent Corporation, there is a bar of Order 2, Rule 2 of CPC and the application on behalf of the applicant is at belated stage and as such, the dismissal of the application is sought for.

10. I have also seen the affidavit-in-reply filed on behalf of the proposed defendant lessor. Learned counsel Mr. Dixit submits that in response to the interim order passed by this court, the proposed defendant has filed affidavit-in-reply. In para.3 of the reply, the proposed defendant/lessor has clarified the position regarding the entire area comprising of 20.335 acres. Then, in para.4, position in regard to open space which is in dispute to the tune of 525 sq. mtrs., is said to have been given to the applicant by resolution of General Body meeting of the society dt.12th February, 1984. In para.5 of the said affidavit-in-reply, it is clarified that the letter dt.9-7-1984, addressed by the proposed defendant/lessor to the Corporation is regarding the betterment charges to the tune of Rs.2,12,000/-. It is claimed that the proposed defendant No.2 had informed the Corporation that it has been resolved to allot the open space for construction of school and that map of the school was requested to be sanctioned. In para.6 of the reply, it is clarified that the proposed defendant has leased CTS No.15689 to the applicant for a period of 99 years. Para.7 of the reply affidavit refers to the non-reply by the Corporation to the letter of the proposed defendant dt.9-7-1984. In para.8 of the reply, it is pointed out that in the year 1991, the Municipal Corporation had not objected to the construction of the said school, however, on 30-8-1991, the Secretary of the said school informed the society that on 29-8-1991 some officer had conducted a panchanama of the said school and the panchas to the said panchanama were two labourers. It is further pleaded in para.9 of the reply regarding demolition of the building of the applicant as well as allotment of plot in lieu of open space.

With the assistance of learned counsel Mr. Dixit, I tried to find out any reply in the affidavit filed on behalf of the proposed defendant in response to the civil application itself. However, to my surprise, it is pointed that the reply is filed under the impression that the proposed defendant is joined by this court as respondent No.2. It so appears from the affidavit-in-reply filed on behalf of the proposed defendant showing "AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.2". First para of this reply is reproduced hereinbelow :-

"That, by way of present civil application the society has been impleaded as respondent No.2 in the present second appeal".

Learned counsel Mr. Dixit admits that this court has not till today passed on order in this C.A. No.3183/2003 or anywhere else, adding the proposed defendant namely Jai Vishwabharti Co-operative Housing Society Ltd., as party defendant or party respondent.

In this background, it is not necessary to deal with the contention raised in this affidavit-in-reply exhaustively considering the nature of the Civil Application No.3189/2003.

11. I have seen the pleading of the original suit, written statement filed by the defendant corporation, the judgment and decree of the court at first instance as well as the judgment of the first appellate court. This application, according to Mr. Dixit, is filed under Order 1, Rule 10 of CPC. If the scheme of Order 1, Rule 10 of CPC is considered with the contentions raised in this civil application, in my view, it is high time for the applicant to seek amendment or addition of the proposed defendant in the suit as well as in the second appeal. I have referred to the documents Exhs.54, 55 and 56. Document Exh.54 refers the name of the present application. That document is in fact, is in the name of the lessor i.e. proposed defendant. Documents at Exhs.55 and 56 are also in the name of proposed defendant. In other words, these three documents seem to have been in the custody of the proposed defendant/lessor of the applicant. All these documents have been placed on record on 9-7-1992 in the trial court itself. Considering this date, it was for the applicant to take steps, if at all applicant wanted to seek addition of proposed defendant/lessor in the suit. In the background of these facts the respondent/Corporation defendant is justified in saying that the application is filed at belated stage. Apart from the belated stage of filing of the application, I have also considered the application on merits. The controversy in the suit is restricted to the open space of 525 sq. mtrs. which is recorded in the record of City Survey, as City Survey No.15689. Panchanama Exh.63 dated 29-8-1991 drawn by the officers of the Corporation is in respect of the alleged unauthorised construction or development made in this plot i.e. CTS No.15689. The controversy, therefore, in the suit i.e. RCS No.1095/1991 is restricted to CTS No.15689 and alleged illegal construction in the said property. This construction is carried out by the plaintiff, resorting to alleged deemed permission. The plaintiff contested the matter upto this Court. The proposed defendant is not necessary party nor proper party to the suit.

12. In this civil application, the applicant has tried to explain the entire layout of 20.335 acres. It appears that layout of 20.335 acres is obtained by the proposed defendant from the Corporation. The applicant, by referring the entire layout, is trying to show that the open space to the tune of 10% is maintained. In the suit of this nature, by adding proposed defendant as party, the controversy cannot be permitted to be expanded for about entire layout plan for 20.335 acres. In this respect, there may be a separate cause of action or remedy for the proposed defendant i.e. lessor and it may be a matter in between the proposed defendant and other plot owners/holders on one hand and the Corporation on the other hand. But, only because the first appellate court has passed a decree against the present applicant, the present applicant, cannot seek addition of proposed defendant at this stage to defeat the decree passed by the first appellate court.

13. In this view of the matter, I am not inclined to allow this application. The application is not within the spirit of Order 1, Rule 10 of CPC. The application, therefore, stands dismissed.

Application dismissed.