High Court · 2023
Legal Reasoning
Ethape( 1 ) WP-8475-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8475 OF 2023 Pallavi d/o. Vaijinath GalandeAge:36 years, Occ: Service,R/o. Shivajinagar, Dharmabad,Tq. Dharmabad, Dist. Nanded.… PETITIONER VERSUS1. Vaishal d/o. Vaijinath Meghmale@ Vaishal w/o. Nitin JodAge: 45 years, Occu: Service,R/o. Shivsainagar, Beside Pawak,Hanuman Mandir, Tarolda Bk.Tq. & Dist. Nanded. 2. Vaijinath s/o. Laxman GalandeAge:65 years, Occu: Retired,R/o. Shivsainagar, Plot No.13,Gat No. 243, Tarolda Bk.Tq. & Dist. Nanded.3. Ranjana w/o. Vaijinath GalandeAge: 62 years, Occu: Household,R/o. Shivsainagar, Plot No.13,Gat No. 243, Tarolda Bk.Tq. & Dist. Nanded.4. Sainath s/o. Vaijinath GalandeAge:26 years, Occu: Nil,R/o. Shivsainagar, Plot No.13,Gat No. 243, Tarolda Bk.Tq. & Dist. Nanded.
Legal Reasoning
Ethape( 2 ) WP-8475-20235. Gajanan s/o. Vaijinath GalandeAge: 42 years, Occu: Household,R/o. Shivsainagar, Plot No.13,Gat No. 243, Tarolda Bk.Tq. & Dist. Nanded.6. Priyanka d/o. Vaijinath GalandeAge:32 years, Occu: Nil,R/o. Shivsainagar, Plot No.13,Gat No. 243, Tarolda Bk.Tq. & Dist. Nanded....RESPONDENTSMr. Amol Ram Joshi, Advocate for the Petitioner.Mr. A. A. Yadkikar, Advocate for the Respondent No.1. CORAM:KISHORE C. SANT, J.RESERVED ON:28th FEBRUARY 2025PRONOUNCED ON:7th APRIL 2025ORDER :-1.Heard the learned Advocates for the respective parties.2.The petitioner has approached this Court challenging an orderdated 12th June 2023 passed by the learned Joint Civil Judge, SeniorDivision, Nanded on an application Exh.212 in Special Civil Suit No.108of 2011. The application for intervention in the suit filed by the presentpetitioner came to be rejected by the impugned order. Ethape( 3 ) WP-8475-20233.The facts, in short, are that, the Respondent No.3 to 6 filed a suitagainst present respondent No.1 and 2 for declaration that the sale-deedexecuted by respondent No.2 in favour of respondent No.1 is not bindingon them. The plaintiff’s case is that the Defendant No.2 - VaijinathGalande, husband of Respondent No.3 and father of plaintiff Nos.2 to 4had executed sale-deed in favour of respondent No.1 without any legalnecessity. The property belongs to family of plaintiffs and respondentNo.2. The respondent No.2 was not looking after the family members.He is also not paying maintenance to them and stays away from thefamily. He executed sale-deed in respect of landed property i.e.residential house to respondent No.1. The property which is sold is theonly house property of the family. It is also alleged that the sale-deed isbogus etc. 4.The suit proceeded further. The present petitioner, who happens tobe the daughter of respondent No.2 - Vaijinath Galande and sister ofRespondent Nos.4 to 6, was staying at different place and was unawareof filing of the suit. When she came to know about filing of the suit, she Ethape( 4 ) WP-8475-2023filed an application for intervention. It is specific case of the petitionerthat she happens to be a member of the family and, therefore, she is anecessary party to the suit. The plaintiff, though, were having knowledgethat the petitioner is also a member of family still deliberately did notjoin her as a party. She happens to be a daughter of respondent No.2from his first wife. She is real sister of respondent No.5 and 6 and stepsister of respondent No.4 and, thus, she filed an application seekingintervention.5.The Respondent No.2 filed say and opposed the application statingthat the application is not tenable. She is already given some amount atthe time of her marriage and prayed for rejection. The plaintiffs i.e.Respondent No.3 to 6 also submitted say that the suit is kept forargument/judgment and, at this stage, the application is filed only toprolong the suit and they also prayed for rejection.6.The learned trial Court heard the parties. framed the points. Thetrial Court held that the present petitioner is not a necessary party. Herpresence is not required for adjudication of the suit and rejected the Ethape( 5 ) WP-8475-2023application. 7.Mr. Joshi, the learned Advocate for the petitioner vehementlyargued that the relationship between the parties is not disputed. Thepetitioner has equal interest in the suit like the plaintiffs. He, thus,submits that when she has interest in the property, she ought to havebeen filed an application for intervention. 8.Mr. Yadkikar, the learned Advocate for the respondent vehementlyopposed the petition. It is submitted that the application for interventionwas filed at the stage where the suit was kept for judgment. Filing of theapplication, at this stage, clearly shows that the petitioner is interestedin prolonging the proceeding of the suit. Care of her interest is alreadytaken by the plaintiffs. The suit is only for declaration that the sale-deedis not binding, nothing to show that the petitioner's assistance isabsolutely necessary. He relied upon the following judgments:(i)Anokhe Lal Vs. Radhamohan Bansal and Ors.1;(ii)Naba Kumar Hazra and Ors. Vs. Radhashyam Mahish1AIR 1997 SC 257 Ethape( 6 ) WP-8475-2023and Ors.2;(iii)Sudhamayee Pattnaik and Ors. Vs. Bibhu Prasad Sahooand Ors. decided by the Hon’ble Apex Court in Civil AppealNo.6370 of 2022 on 16th September 2022.(iv)Moreshar s/o. Yadaorao Mahajan Vs. VyankateshSitaram Bhedi (D) Thr. LRS. And Ors. passed by the Hon’bleSupreme Court in Civil Appeal No.5755-5756 of 2011 on 27thSeptember 2022. 9.After hearing the parties, this Court has to consider as to whetherthe presence of the petitioner is necessary for deciding the suit. Therelationship between the parties is not disputed by any of the parties.The petitioner happens to be a daughter of defendant No.2 and sister ofplaintiff No.2 to 4. This relationship is not denied.10.From the discussion in the trial Court’s order and from the prayersin the suit it is clear that there are also prayers for partition and separatepossession in the suit. If the suit is decreed, the plaintiffs would get evenseparate possession and decree of partition. The trial Court has,however, observed that the prayers of partition and separate possessionare ancillary prayers and the main prayer is only to declare the sale-deed2AIR 1931 PC 229 Ethape( 7 ) WP-8475-2023as not binding. Application is rejected on one more ground that on thedate fixed, the petitioner and her Advocate were absent. The conclusionis, therefore, drawn that the application is filed only for protracting thesuit. 11.In the case of Anokhe Lal Vs. Radhamohan Bansal and Ors. (supra)the Hon'ble Apex Court held that a person, merely a proper party, neednot be a necessary party while deciding the application. The Court has tosee the presence of such party is absolutely necessary to decide the lis. Inthe case of Naba Kumar Hazra (supra), it was observed that allowingintervenor to join the suit would require to commence the proceedingde-novo. In the case of Moreshwar Yadaorao Mahajan (supra), theHon'ble Apex Court held that, a ‘necessary party’ is a person who oughtto have been joined as a party and in whose absence no effective decreecould be passed by the Court. In the case of Sudhamayee Pattnaik andOrs. (supra), the Apex Court was dealing with the case wherein thesubsequent purchasers had approached for impleading them as a partydefendant. Ethape( 8 ) WP-8475-202312.This Court finds that the said judgments are not applicable in thefacts of the present case. While dealing with such application, it is truethat the plaintiffs are dominus litis and it is for plaintiffs to decide as towhom to join as a party. The plaintiffs cannot deliberately keep someperson having right in the property, away from the proceeding. In thepresent case, the relationship is not disputed. When all the parties areaware of the relationship, still the petitioner was not joined as a party.This clearly shows that it is deliberate act of the plaintiffs to keep thepetitioner away. The learned trial Court though has observed that, thereis a prayer for partition and separate possession, still considered it to bean ancillary relief. This Court finds that the said observation is notcorrect. When the decree of partition is to be passed, certainly thepetitioner would be entitled to receive share in the property. Atleast shehas interest in the family property. In this case, therefore, it is necessarythat she should be added as a party. Merely because the suit is likely tobe protracted that the application is filed at the fag-end of the trial is noreason to deny a person an opportunity to participate in the suit when itis shown that such person has interest in the lis. Ethape( 9 ) WP-8475-202313.For all these reason, this Court is inclined to allow the writpetition. Writ petition is, therefore, allowed. Hence, the following order: ORDER(i)Writ petition stands allowed.(ii)The impugned order dated 12th June 2023 passed bythe learned Jt. Civil Judge Senior Division, Nanded belowapplication Exh.212 in Special Civil Suit No.108 of 2011 isquashed and set aside.(iii)Application below Exh.212 in Special Civil Suit No.108of 2011 pending before the learned Jt. Civil Judge SeniorDivision, Nanded stands allowed.(iv)The trial Court to dispose off the suit as early aspossible and preferably within one year from today. (v)With this, Writ Petition stands disposed off. [KISHORE C. SANT, J.]1. At this stage, learned Advocate for the Respondent prays that theeffect of the order be stayed for three weeks. 2.The said requested is objected by the petitioner stating that in fact, Ethape( 10 ) WP-8475-2023stay was granted in favour of the petitioner. 3.At the request of the learned Advocate for the respondent,operation of the order stayed for three weeks from today. [KISHORE C. SANT, J.]