BALMUKUND CHAUDHARI THROUGH HER POWER OFATTORNEY MEENAKSHI BALMUKUND CHAUDHARIMr v. B. Patil

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD42 WRIT PETITION NO. 8697 OF 2023MUKUND BALVIRSING THAKUR THROUG GPA ANIRUDH MUKUNDTHAKURVERSUSCHITRAREKHA BALMUKUND CHAUDHARI THROUGH HER POWER OFATTORNEY MEENAKSHI BALMUKUND CHAUDHARIMr. V. B. Patil, Advocate for the petitionerMr. T. K. Sant, Advocate for respondent no.1.Mr. S. B. Yawalkar, Advocate for respondent no.2.CORAM: R. M. JOSHI, J.DATE: 18th NOVEMBER, 2024PER COURT :-1.This petition takes exception to the order dated 4th October,2022 passed below Exhibit 75 in Spl. Civil Suit No. 71/2013 wherebyapplication filed by the petitioner/ third party to join as party defendantunder Order 1 Rule 10 of the Code of Civil Procedure stood rejected.2.The original plaintiff filed suit for declaration and other reliefswhich reads thus:“a)The suit of the plaintiff may kindly be decreedwith costs. b)It be declared that the decree in Spl. C.S. No.131/2009 is obtained by fraud.c)The decree in Spl. C.S. No. 131/2009 may kindlybe set aside.d)The sale deed executed on the basis of decree inSpl.C.S. No. 131/2009 dt. 5/10/2012 may kindly be42.wp8697.23.odt1 of 6 declared to be null and void and not binding on theplaintiff and it may kindly be set aside.e)The Defendant No.1 may kindly be restrained byan order of temporary as well as perpetual injunctionfrom alienating the suit property in any manner.f)Any other order in the interest of justice thatmay be deemed fit may kindly be passed.”3.The petitioner claims that he filed suit bearing R.C.S. No.110/2011. This suit came to be dismissed in default. An application beingM.C.A. No.184/2022 filed for restoration thereof is pending before theCompetent Court. It is alleged by the petitioner that intentionally thepetitioner is not added as party respondent to the Spl. C.S. No. 71/2013as well as Spl.C.S. No. 131/2009.4.Learned counsel for the petitioner submits that owing to theaverments in the plaint it can be said that the petitioner has interested inthe subject property i.e. plot No.30 situated at Mauje Pimprala, Jalgaon.He has also drawn attention of the Court to the averments made in theplaint by the plaintiff with regard to the acquisition of rights, title andinterest in the said property on the basis of sale deed of Rukhminibai.Thus, it is his submission that the petitioner is necessary and properproperty to the said suit. Apart from this it is his submission that thePrincipal District Judge, Jalgaon has passed order in Misc.C.A. No.4/2023 whereby R.C.S. No. 110/2011, Spl. C. S. No. 71/2013 as well as42.wp8697.23.odt2 of 6 restoration application bearing No. M.C.A. No. 184/2022 are transferredbefore one Court.5.Learned counsel for the original plaintiff/respondentsupported the impugned order.6.Since the application is filed under Order 1 Rule 10 of C.P.C.unless it is shown that person who has applied for joining as a partyeither necessary or proper party, the applicant cannot be entertained. Inthis regard reference can be made to the judgment of Hon’ble SupremeCourt in case of Mumbai International Airport Pvt. Ltd. vs. RegencyConvention Centre and Hotels Pvt. Ltd. and Ors. MANU/SC/0427/2010.“12. Let us consider the scope and ambit of Order 1 ofRule 10(2) CPC regarding striking out or adding parties.The said sub-rule is not about the right of a non-party tobe impleaded as a party, but about the judicial discretionof the court to strike out or add parties at any stage of aproceeding. The discretion under the sub-rule can beexercised either suo moto or on the application of theplaintiff or the defendant, or on an application of a personwho is not a party to the suit. The court can strike out anyparty who is improperly joined. The court can add anyoneas a plaintiff or as a defendant if it finds that he is anecessary party or proper party. Such deletion or additioncan be without any conditions or subject to such terms asthe court deems fit to impose. In exercising its judicialdiscretion under Order 1 Rule 10(2) of the Code, the courtwill of course act according to reason and fair play and notaccording to whims and caprice. This Court in RamjiDayawala & Sons (P) Ltd. v. Invest ImportMANU/SC/0502/1980 : 1981 (1) SCC 80 reiterated the42.wp8697.23.odt3 of 6 classic definition of 'discretion' by Lord Mansfield in R. v.Wilkes 1770 (98) ER 327 that 'discretion' when applied tocourts of justice, means sound discretion guided by law. Itmust be governed by rule, not by humour; it must not bearbitrary, vague, and fanciful, 'but legal and regular'. Wemay now give some illustrations regarding exercise ofdiscretion under the said Sub-Rule. 12.1) If a plaintiff makes an application for impleading aperson as a defendant on the ground that he is anecessary party, the court may implead him having regardto the provisions of Rules 9 and 10(2) of Order 1. If theclaim against such a person is barred by limitation, it mayrefuse to add him as a party and even dismiss the suit fornon-joinder of a necessary party.12.2) If the owner of a tenanted property enters into anagreement for sale of such property without physicalpossession, in a suit for specific performance by thepurchaser, the tenant would not be a necessary party. Butif the suit for specific performance is filed with anadditional prayer for delivery of physical possession fromthe tenant in possession, then the tenant will be anecessary party in so far as the prayer for actualpossession.12.3) If a person makes an application for beingimpleaded contending that he is a necessary party, and ifthe court finds that he is a necessary party, it can impleadhim. If the plaintiff opposes such impleadment, theninstead of impleading such a party, who is found to be anecessary party, the court may proceed to dismiss the suitby holding that the applicant was a necessary party and inhis absence the plaintiff was not entitled to any relief inthe suit.12.4) If an application is made by a plaintiff forimpleading someone as a proper party, subject tolimitation, bonafides etc., the court will normally impleadhim, if he is found to be a proper party. On the otherhand, if a non-party makes an application seekingimpleadment as a proper party and court finds him to be aproper party, the court may direct his addition as a42.wp8697.23.odt4 of 6 defendant; but if the court finds that his addition will alterthe nature of the suit or introduce a new cause of action,it may dismiss the application even if he is found to be aproper party, if it does not want to widen the scope of thespecific performance suit; or the court may direct suchapplicant to be impleaded as a proper party, eitherunconditionally or subject to terms. For example, if 'D'claiming to be a co-owner of a suit property, enters intoan agreement for sale of his share in favour of 'P'representing that he is the co-owner with half share, and'P' files a suit for specific performance of the saidagreement of sale in respect of the undivided half share,the court may permit the other co-owner who contendsthat 'D' has only one-fourth share, to be impleaded as anadditional defendant as a proper party, and may examinethe issue whether the plaintiff is entitled to specificperformance of the agreement in respect of half a share oronly one-fourth share; alternatively the court may refuseto implead the other co-owner and leave open thequestion in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding bythe other co-owner, or the plaintiff; alternatively the courtmay implead him but subject to the term that the dispute,if any, between the impleaded co-owner and the originaldefendant in regard to the extent of the share will not bethe subject matter of the suit for specific performance,and that it will decide in the suit, only the issues relatingto specific performance, that is whether the defendantexecuted the agreement/contract and whether suchcontract should be specifically enforced. In other words,the court has the discretion to either to allow or reject anapplication of a person claiming to be a proper party,depending upon the facts and circumstances and noperson has a right to insist that he should be impleaded asa party, merely because he is a proper party.”7.In the light of the law laid down by Hon’ble Supreme Court,this Court will have to see as whether the petitioner is necessary orproper party to the suit bearing Spl. Civil Suit No. 71/2013. This suit is42.wp8697.23.odt5 of 6 filed for declaration that the decree obtained in Spl. C.S. No. 131/2009 isby fraud and consequent sale deed executed on the basis of the saiddecree is not binding upon the plaintiff. Admittedly, the petitioner hereinwas not party to the Spl. C.S. No. 131/2009 nor is party to the sale deedexecuted on the basis of decree passed therein. Thus, the presence ofpetitioner in this suit is not necessary.8.The contention of the leaned counsel for the petitioner aboutthe petitioner having right / interest in plot no. 30 is concerned, separatesuit was filed by the petitioner which came to be dismissed for want ofprosecution. An application for restoration of the said suit is pending. Ifthe said suit is restored, it is open for the petitioner to pursue hisremedy. Apart from this there is no dispute about the fact that theplaintiff herein at filed counter claim and as such said issue is involved inthe counter claim wherein the petitioner is a party defendant. Thus, noprejudice will cause to the petitioner if his application under Order 1 Rule10 is rejected. In exercise of writ jurisdiction, for want of perversity inthe impugned order, no interference is caused. Hence, petition isdismissed.(R. M. JOSHI, J.)ssp42.wp8697.23.odt6 of 6