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Sri Vardhaman Stanakvisi JaIn Sravak Sangh Vs. Chandrakumar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberM.F.A. No. 26 of 1984
Judge
Reported inILR1984KAR889
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 9, 10 and 10(2)
AppellantSri Vardhaman Stanakvisi JaIn Sravak Sangh;sri Swamy Sangli Muneswara Temple Trust (Regd)
RespondentChandrakumar and anr.;
Appellant AdvocateN. Santosh Hegde and T.I. Abdulla and ;H. Subramanya Jois, Adv.
Respondent AdvocateR. Suryanarayanaswamy and S. Ramesh for Caveator
Excerpt:
.....disputes between the plaintiff and the defendants is whether the plaintiff is in possession of the suit property and further whether there has been any interference by the defendants. these questions can be decided effectually and completely without the presence of the applicant. so the applicant is also not a 'proper' party to the present litigation. - karnataka prisons act, 1963 [k.a. no. 33/1963]. karnataka prisons manual, article 650: [s.r. bannurmath & k. ramanna, jj] parole - question whether parole extended to the detenue would interrupt the period of detention? - held, the period spent under parole will not count as a part of sentence. the period of detention would stand automatically extended even if a person is on parole. normally, parole will not interrupt the period of..........of which some have been leased out by theplaintiff to several tenants. in a portion of the suit property, there is a community hall being used by the members of the jain community as prayer hall and also for celebrating other functions. when the matter stood thus, during the month of february 1983, the defendants approached the authorities of the plaintiff to permit them to put up a temporary structure in a portion of the suit property for running car garage. the authorities of the plaintiff refused to oblige them. the defendants being annoyed, made an attempt to trespass upon the suit property in the 1st week of march 1983 with the assistance of their henchmen and put up a temporary structure. the plaintiff with theassistance of the people of the locality prevented the.....
Judgment:
ORDER

Narayana Rai Kudoor, J.

These two applications have been filed by an alleged Trust called Sri Swamy Sangli Muneswara Temple Trust (Regd), No. 17, St. John Church Road, Civil Area, Bangalore 1, represented by its Secretary.

1. The. application I. A. No. II is one under Order I Rule 10 C. P. C. to implead the applicant as on additional respondent in the above appeal. I.A. No. Ill is an application under Order 39 Rule 4 C. P. C. to vacate or modify the interim order dated 12-1-1984 passed on I.A. No. I.

2. The plaintiff Sri Vardhaman Stanakvisi Jain Sravak Sangh in O.S. No. 956/1983 on the file of the XI Additional City Civil Judge, Bangalore City, is the appellant and the defendants N. Chandrakumar and Venkatesh in the suit are the respondents in this appeal. The plaintiff has brought the suit against the defendants for permanent injunction restraining them from interfering with the plaintiff's possession and enjoyment of the plaint-schedule property. The case of the plaintiff was that the plaintiff, represented by its trustees, purchased the plaint schedule property under a registered sale deed dated 19-9-1959 from one Gowra Bai who in turn had purchased it from its previous owner one Lt. V. Krishnaswamy under a registered sale deed dated 21-7-1995. Since then the plaintiff and its predecessors in title have been in possession of the suit schedule property as owner thereof. The property consisted of number of structures of which some have been leased out by theplaintiff to several tenants. In a portion of the suit property, there is a community hall being used by the members of the Jain Community as prayer hall and also for Celebrating other functions. When the matter stood thus, during the month of February 1983, the defendants approached the authorities of the plaintiff to permit them to put up a temporary structure in a portion of the suit property for running car garage. The authorities of the plaintiff refused to oblige them. The defendants being annoyed, made an attempt to trespass upon the suit property in the 1st week of March 1983 with the assistance of their henchmen and put up a temporary structure. The plaintiff with theassistance of the people of the locality prevented the defendants from doing any unlawful activities on the suit property and also lodged a complaint against them with the police. The defendants once again made an unsuccessful attempt to trespass upon the suit property on the day prior to the filing of the suit whichwas on 30-3-1983 for a permanent injunction against the defendants to restrain them from interfering with the plaintiff's possession and enjoyment of the suit property. The plaintiff also filed an application I A. No. I under Order 39 Rules 1 and 2 read with Section 151 C.P.C. along with the plaint seeking an order of temporary injunction against the defendants and obtained an ad interim order of temporary injunction on 2-4-1983. The defendants, having entered appearance filed an application I.A. No. II under Order 39 Rule 4 C.P.C. for vacating the exparte order of temporary injunction granted in favour of the plaintiff. The Trial Court upon consideration of the applications I. As. I and II, allowed the application I.A. II and vacated the ad interim order of temporary injunction granted in favour of the plaintiff as per its order dated 15-11-1983 dismissing the application I.A, I filed by the plaintiff. The plaintiff, thus being aggrieved by the order dated 15-11-1983 has preferred this appeal which was admitted on 9-1-1984. The consideration of the application I.A. I filed by the plaintiff in this appeal under Order 39 Rules I and 2 read with Section 151 C.P.C. praying for an interim order of injunction during the pendency of the appeal was postponed since the 2nd defendant, having entered caveat opposed the application LA. No. I. The application I.A. I came to be considered on 12-1-1984 and having heard the arguments on behalf of the plaintiff as well as theCaveator, the 2nd defendant, an order was passed granting temporaryinjunction against the defendants restraining them from interfering with the possession and enjoyment of the suit property by the plaintiff during the pendency of the appeal. The appeal is pending for hearing. In the meanwhile, these two applications came to be filed by the applicant for the reliefs stated supra. I shall proceed to consider in the first instance application I.A. II.

3. The applicant in its application LA. II, which is an application for impleading the applicant as an additional respondent in the appeal, has averred, through the affidavit of one R. Iyyappa said to be one of the trustees of theapplicant trust, that the suit brought by the plaintiff for a bare injunction without seeking the necessary declaration is not maintainable in law. The defendants in the suit are devotees of Sri Muneswaraswamy. The shrine has been in existence in the suit property for over a century. There is a peeper tree existing in the suit property which is being worshipped by thousands of devotees for over decades. The plaintiff suppressed, these material facts and brought the suit against the defendants speculatively with a view to rinding out the possibility of restraining all the devotees from continuing to worship the deity and the tree in the shrine. The suit is intended to dispossess the devotees from the possession of the shrine. The applicant is a registered trust under the provisions of the Indian Trust Act as a charitable trust. The plaintiff is fully aware of the fact that the property in respect of which the suit has been brought is not a property in the strict sense. It is a shrine. The deity in the shrine has to be worshipped daily in the customary manner ;poojas are being performed to the deity for over a century. The shrine is considered as a place of worship and religious activities. The peeper tree in which there is incarnation of Lord Ganapathi is also beingworshipped by the devotees every day. The shrine and the peeper tree have been attracting for decades devotees from within and outside the State. The defendants against whom the plaintiff has filed the suit are not the devotees of the shrine but may be two among the thousands of devotees. The 1st defendant has been won over by the plaintiff and he is not likely to defend himself in the suit. The defendants do not have any of their men, agents, servants or representatives. However, in the guise of preventing the defendants and their alleged agents, men, servants etc., the trust and thousands of devotees of the shrine are prevented from worshipping at the shrine. Taking advantage of the order of injunction that has been granted in the appeal, the plaintiff has already locked the gate through which the devotees used to enter the shrine and thereby the plaintiff hasrestrained thousands of devotees including the trustees from entering the shrine and performing the poojas. The plaintiff is also attempting to demolish the entire structure and also to cut and remove the peeper tree which has been standing in the suit properly for over a century. Portion of the shrine has already been demolished by the plaintiff by virtue of the order of injunction granted in the appeal. The order of temporary injunction granted in the appeal cannot in any way prevent thousands of devotees and the trust from being in possession of the shrine and perform the poojas there it. Since the plaintiff has threatened that it would initiate action against the trust and the devotees if they continue to worship at the shrine or enter the shrine, it has become necessary to approach this Court for necessary relief. The applicant is a necessary party to the proceedings. Without the applicant being on record, it will not be possible for this Court to effectually and completely adjudicate upon the matter in controversy.

4. The plaintiff has filed a counter affidavit resisting the application I.A. II. Having denied all the materialallegations contained in the affidavit filed by the applicant in support of its application, it is stated by the plaintiff in its counter affidavit that it filed the suit against the defendants for permanent injunction restraining them from interfering in any way with the peaceful possession of the suit schedule property by the plaintiff. The plaintiff has suppressed no material facts as alleged by the applicant The plaintiff is not aware that the applicant is a trust and that it has been registered under the provisions of the Indian Trust Act. The plaintiff denied having locked the gate and prevented the devotees from entering the shrine. The plaintiff had put a lock to the gate with a view to prevent the trespassers from entering into the suit property. The Trial Court granted an order of temporary injunction in favour of the plaintiff against the defendants which was in force for the period from 2-4-1983 to 15-11-1983. Again this Court granted an order of temporary injunction as per its order dated 12-1-1984 against the defendants. If the alleged devotees of the trust are really aggrieved by the order of temporary injunction and if they were really performing the poojas and sevas, they could have approached the Trial Court for getting themselves impleaded as parties to the suit. The inaction on the part of the alleged devotees for a long time itself would show that they do not have any right whatsoever and that their claim is baseless. They appear to be only busy-bodies meddling with the rights of the plaintiff over the peaceful possession of the suit property. The plaintiff denied the allegation either of demolition of the structure or cutting the trees. The order of temporary injunction was granted by this Court in favour of the plaintiff to protect its interest andpossession of the suit property from the interference by the defendants in the suit. The suit filed by the plaintiff is one for bare injunction against the defendants and as such the applicant is neither a necessary nor a proper party to the proceedings. The plaintiff is fighting against the defendants and claiming relief against them The plaintiff cannot be compelled to fight against a party against whom it does not wish to fight and against whom it does not claim any relief. The applicant has no cause of action against the plaintiff nor it has a right to come on record as an additional respondent in the appeal arising out of an interlocutory order in a suit for bare injunction. If the applicant is aggrieved against the plaintiff, it has to file a separate suit to redress its grievance. So far the applicant has not filed any application to get itself impleaded as a party defendant in the suit pending for trial in the Court below. The application is misconceived. 'It is not maintainable in law and as such liable to be dismissed.

5. Heard the learned advocates appearing for the parties.

6. The short point that arises for consideration is whether the applicant is entitled to be brought on record as an additional respondent in this appeal. The application I.A.II is one under Order I Rule 10 C.P.C. The material portion of Order I Rule 10 (2) which is relevant for our purpose reads :

'A court may at any stage of the proceedings, either upon or without the application of either party, and on such terras as may appear to the Court to be just, order.....that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added'.

7. A bare reading of this provision shows that the Court has power to direct a person to be made a party to a suit if such person ought to have been made a party or that the Court feels the necessity of impleading him with a view to adjudicate upon and settle all the questions involved in the suit effectually and completely. The questions involved in the suit would mean the question concerning the parties to the suit and not with the questions concerning any third party. A party may be a 'necessary' or 'proper' party to a suit. If a party is a 'necessary' party, such a person must be added as a party to the litigation. If such a party is a 'proper' party, then the Court may considered whether his presence is necessary to enable the Court effectually and completely to adjudicate upon andsettle all the questions involved in the suit. Order I Rule 9 C.P.C. provides that by reason of mis joinder or non joinder of the parties, the Court will not dismiss the suit. The Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. However, it has been further provided that Rule 9 of Order I of the Code would not apply where a necessary party is not joined to the suit. In other words it means that if a necessary party is not before the Court, then the suit may be dismissed. So in dealing with an application under Order I Rule 10 (2), the Court has to determine whether the party proposed to be added as a party to a suit is one who ought to have been joined as a party. In other words, the Court has todetermine whether such a person is a necessary party without whose presence no relief could be granted to the plaintiff or the defendant. In the alternative, the Court has to determine whether the presence of any such person is necessary to decide the disputes between the parties to the suit. In case such a party is only a proper party, then that party can be added if the Court holds that to decide the disputes between the parties effectually and completely, his presence is necessary. The Court has to exercise its discretion while impleading a party in the light of the above provisions.

8.Admittedly the plaintiff did not seek any relief in the suit brought by it against the applicant. As could be seen from the allegation made in the plaint and also the defence set up by the defendants in their written statement, the question involved in the suit is purely between the plaintiff and the defendants. The plaintiff brought the suit against the defendants for a permanent injunction restraining them from interfering with the peaceful possession end enjoyment of the suit property by the plaintiff on the ground that the plaintiff is the owner in exclusive possession of the suit property and the defendants attempted to interfere with its possession and enjoyment of the same, If the plaintiff fails to prove its possession of the suit property and the alleged interference of its possession by the defendants, the suit may be dismissed at the instance of the defendants. If any relief is granted to the plaintiff against the defendants, such relief would not prejudice the applicant, in this suit for injunction. There is no injunction granted against theapplicant. The order of temporary injunction granted in this appeal is against the defendants, from interfering with the possession of the plain tiff of the suit property. The plaintiff has claimed injunction against the defendants mainly on the ground that it is in possession of the suit as owner. Whether such an injunction could be granted or not, is the subject matter of trial. If the plaintiff has no right, if he is not hold to be the owner in possession, an injunction may or may not be granted restraining the defendants from interfering with itspossession. The judgment between the plaintiff and the defendants would not be binding upon the applicant. The judgment in an injunction suit would not be a judgment in rem. In these circumstances .I am of the opinion that the applicant is not a necessary party.

9. The next question that arises for consideration is whether the applicant is a proper party and his presence is necessary before the Court to enable it to give relief to the plaintiff against the defendants. As already stated, the disputes between the plaintiff and the defendants is whether the plaintiff is in possession of the suit property and further whether there has been any interference by the defendants. These questions can be decided effectually and completely without the presence of the applicant. So I am of the view that the applicant is also not a 'proper' party to the present litigation. The alleged apprehension of the applicant that the plaintiff would make use of the interim order it secured against the defendants against the applicant, as sought to be urged by Sri Subramanya Jois, Learned Counsel appearing for the applicant in the course of his arguments, is not well founded. Such an apprehension, in my opinion, will not afford either a ground or a legal basis to maintain the application.

10. Having considered all the facts and circumstances of the case, I am inclined to hold that the application I.A. II is legally unsustainable and liable to be dismissed. Accordingly it is dismissed.

11. In view of my findings on LA. II, the application I.A. III also fails and the same is dismissed. However, in the circumstances of the case, I make no order as to costs.


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