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Muslim Wakf Board and anr. Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 384 of 1959
Judge
Reported inAIR1960MP249
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 9; Specific Relief Act, 1877 - Sections 42 and 54
AppellantMuslim Wakf Board and anr.
RespondentMunicipal Board
Appellant AdvocateP.S. Khirwadkar, Adv.
Respondent AdvocateV.S. Dabir and ;Rampanjwani, Advs.
DispositionRevision allowed
Cases ReferredStraw Products Ltd. v. Municipal Board
Excerpt:
.....to be set aside. - it is significant to observe that the trial court has not considered the government to be a necessary party in the sense that failure to implead them would entail the dismissal of the suit. the plaint tiff is the best judge of his own interest if he seeks relief against a particular individual and impleads that individual as a sole defendant, it is not the look-out of the court or of any other third person,to see whether somebody else must be allowed to intrude into the case as a co-defendant, against the plaintiffs will, simply because that third person represents to the court that he is a person who would be affected by the decision,'it is thus clear that the plaintiff cannot be compelled against his wishes to implead anyone as a defendant. at best, the only..........and mala 'fide and has directed that the plaintiffs must now amend the plaint and seek proper relief of declaration and pay court-fees accordingly. once again it is not for the court to direct how the plaintiff should frame his claim. if the court considers that the relief for declaration is necessary and the suit cannot proceed without such a relief being there in the plaint, the suit can be dismissed.the plaintiffs have not prayed for a declaration at all in this case and, in my opinion, it is not necessary for them to do so. the fact that the plaintiff no. 2 owns the property and the municipal board was not entitled to issue a notice is onlya ground for supporting the prayer for injunction. it is not necessary for the plaintiffs to seek a separate declaration of their title or.....
Judgment:
ORDER

T.C. Shrivastava, J.

1. This petition for revision under Section 115 of the Code of Civil Procedure is by the plaintiffs against the order, dated 29-6-1959, of the 2nd Civil Judge (Class II), Bhopal, in Civil Suit No. 50 of 1958, deciding certain preliminary issues.

2. The non-applicant (defendant) Municipal Board, Bhopal, served a notice on the plaintiff No. 1 to remove a shed from an open site described in the plaint. The case of the plaintiffs is that the site is owned by plaintiff No. 2 and has been leased to plaintiff No. 1. They alleged that the site did not belong to the Municipal Board, Bhopal, and had not vested in it. Accordingly, they claimed that the notice given by the non-applicant to them to remove the shed is improper and illegal. They prayed for a permanent injunction restraining the defendant from demolishing the structure or removing the materials thereof.

3. On behalf of the non-applicant a plea was taken that the land belonged to the State Government who should be impleaded as a defendant. It was also stated that the plaintiffs should ask for a declaration of their title to the land in addition to the injunction claimed.

4. The preliminary issues on which the findings of the trial Court are challenged in this revision are as follows :

'Issue No. (ii): Whether the M. P. Government is a necessary or a proper party in this suit?

And

Issue No. (iii) : Whether the suit has been undervalued If so, effect ?'

5. On the first issue, the trial Court has found that the State Government is a proper party in this suit and has ordered the plaintiffs to implead the Government. The reason for this finding is that 'as the suit shall warrant an enquiry into the title of the suit land,' it is just and proper that the Government should also be present to come forward with the defence. It is significant to observe that the trial Court has not considered the Government to be a necessary party in the sense that failure to implead them would entail the dismissal of the suit.

On this point Shri Rampanjwani, counsel for the non-applicant, referred to Krishnaswami Naidu v. Municipal Council Bellary, AIR 1937 Mad 641 where it has been, held that in cases where the plea of jus tertii is set up, it is generally considered desirable to make the person whose title is set up a party to the suit to avoid multiplicity of litigation. It was not, however, decided in that case whether the Court had the power to compel a plaintiff to join a person as defendant against his will in cases where such person is only a proper party. The question was considered in Vithoba v. Secretary of State, AIR 1925 Nag 373 and the law on the point has been stated thus :

'Ordinarily the plaintiff who comes into Court is the dominus litis and it must always be left to him to choose his opponent against whom he has to claim the relief in the suit. No stranger has any business to intrude into the case and force himselfupon a plaintiff who does not want him and who does not claim any relief against him. The plaint tiff is the best judge of his own interest if he seeks relief against a particular individual and impleads that individual as a sole defendant, it is not the look-out of the Court or of any other third person,to see whether somebody else must be allowed to intrude into the case as a co-defendant, against the plaintiffs will, simply because that third person represents to the Court that he is a person who would be affected by the decision,'

It is thus clear that the plaintiff cannot be compelled against his wishes to implead anyone as a defendant. He is perfectly at liberty to frame his suit in any way; and as the persons who are not parties to the suit are not bound by the result, itdoes not at all matter to them as to how the case is decided. If the third party is a necessary defendant, then the suit would be dismissed; otherwise the case would be decided on the merits so far as the parties before the Court are concerned. It was not, therefore, within the jurisdiction of the trial Court to order the plaintiffs, in the instant case, to add the State Government as a party. At best, the only order that, could be passed by the Court would be to allow the plaintiffs time to think overwhether they would implead the State Government; and if they decide not to do that, the Court has no power to compel them.

6. On the second issue, the trial Court has stated that the plaintiffs wanted to declare the notices given by the defendant as illegal and mala 'fide and has directed that the plaintiffs must now amend the plaint and seek proper relief of declaration and pay court-fees accordingly. Once again it is not for the Court to direct how the plaintiff should frame his claim. If the Court considers that the relief for declaration is necessary and the suit cannot proceed without such a relief being there in the plaint, the suit can be dismissed.

The plaintiffs have not prayed for a declaration at all in this case and, in my opinion, it is not necessary for them to do so. The fact that the plaintiff No. 2 owns the property and the Municipal Board was not entitled to issue a notice is onlya ground for supporting the prayer for injunction. It is not necessary for the plaintiffs to seek a separate declaration of their title or about the invalidity of the notices issued. The point arises incidentally and the Court has to determine it to adjudicate on the relief of injunction.

7. On behalf of the non-applicant, referencewas made to the decision in Straw Products Ltd. v. Municipal Board, Bhopal, 1959 M.P. LJ 388 : (AIR 1959 Madh Pra 253). It has been observed in that case that the plaintiff has to pay separate court-fees on the relief of declaration. But it is not clear whether such a relief was asked for in that case. If the relief for declaration and the consequential relief for injunction are independentof each other, then court-fees have certainly to be paid on both; but if the relief for injunction follows from the relief of declaration, the case falls under Section 7(iv) (c) of the Court-fees Act and the court-fee' is payable only on the consequential relief. Inthe decision relied upon, the question whether the plaintiff is bound to ask for a relief of declaration 'before claiming an injunction has not been discussed. On reading the plaint in the present case, I am clear that the plaintiffs were not bound to ask for a relief of declaration separately.

8. In the result, the petition for revision is allowed. The order of the trial Court directing the plaintiffs to implead the State Government and to amend their plaint so as to include a relief fordeclaration is set aside. The Court shall now proceed with the trial of the suit in accordance withlaw. The costs of this revision shall be paid by thenon-applicant. Hearing fee is fixed at Rs. 25/-only.


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