Judgment · High Court · 2026

28 wp 366 of 2026.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.366 OF 2026 shriniwas Rama Kulkarni and Ors. ...Petitioners versusMahesh Nivrutti Gawali and Ors. …Respondents Mr. Rupesh R. Lanjekar, for Petitioners. CORAM: N.J.JAMADAR, J. DATE : 13 JANUARY 2026 P.C.

Heard the learned Counsel for the Petitioners.

The challenge in this Petition is to an order dated 18 December 2025passed by the learned Civil Judge, Kalyan, whereby the application preferredby Respondent Nos.21 to 42 to implead them as party Defendants to the suit, under the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure,1908, came to be allowed.

The Petitioners – Plaintiffs claimed to be the owners of the propertybearing old Survey No.170, new Survey No.102, Hissa No.16, admeasuring940 sq. mtrs., situated at Shivaji Nagar, Thakurli, Taluka Kalyan, Dist. Thane(the suit property). Mahesh Nivrutti Gawali (R1) – Defendant No.1, allegedlycommitted encroachment over the suit property and illegally constructed‘Mahesh Gawali Chawl’ thereon. Respondent Nos.2 to 20 – originalDefendant Nos.2 to 20 were alleged to be the trespassers and illegalSSP 1/7 28 wp 366 of 2026.dococcupants or tenants of Respondent No.1. Despite repeated demands andnotices, Defendant Nos.1 to 20 did not vacate the suit property. Hence, a suitfor declaration that the Plaintiffs are the owners of the suit property; Defendants had committed illegal encroachment over the suit property and, they were the trespassers, and, thus, consequential reliefs of a decree forpossession of the suit property and perpetual injunction.

Respondent Nos.21 to 42 claimed that, in fact, they are in possessionand occupation of the various rooms and/or portions of the suit property. ThePlaintiffs have instituted the suit in collusion with the persons, who are not atall in the possession of the suit property. Therefore, Respondent Nos.21 to42 filed an application for their impleadment as party Defendants to the saidsuit. Voluminous documents were annexed to the said application todemonstrate that the Respondent Nos.21 to 42 were in actual and physicalpossession of the portions of the suit property.

The Plaintiffs resisted the application.

By the impugned order, the learned Civil Judge was persuaded to allowthe application recording, inter alia, that the Respondent Nos.21 to 42 – thirdparty applicants, had placed on record documents which, prima facie, indicated that those Respondents were in the occupation of the portions of Mahesh Gawali Chawl. The Plaintiffs were seeking declaration of title qua, and possession of, the suit property, which appeared to be prima facie in theSSP 2/7 28 wp 366 of 2026.dococcupation and possession of the applicants therein, and, therefore, thoseapplicants were necessary parties to the suit. Lest, there would beimpediments in the execution of the decree that may be eventually passed.

Being aggrieved, the Plaintiffs have approached this Court.

Mr. Lanjekar, learned Counsel for the Petitioners, submitted that the Plaintiffs being dominus litis could not have been forced to litigate against Respondent Nos.21 to 42, who are neither necessary nor the proper parties. There is no privity of contract between the Plaintiffs and Respondent Nos.21to 42. Nor there is material to substantiate the claim of those Respondentsthat they are in the occupation of the portions of the suit property. In anyevent, if a decree to deliver vacant and peaceful possession is passed, Respondent Nos.21 to 42 could raise objection to the executability of thedecree on the ground that it does not bind them. However, at this stage, therewas no propriety in impleading the Respondent Nos.21 to 42 as partyDefendants.

To lend support to this submission, Mr. Lanjekar placed reliance on thejudgment of the Supreme Court in the case of NAK Engineering CompanyPvt. Ltd. V/s. Tarun Keshrichand Shah and Ors.1, wherein it wasenunciated that the Plaintiffs being the dominus litis, it was for them to choosetheir adversaries. If they do not array the proper and necessary parties to the12026 SCC Online SC 4SSP 3/7 28 wp 366 of 2026.docsuit, they do it at their own risk. However, they cannot be compelled to add aparty to defend a suit against their wishes.

The legal position in regard to the addition of the party is absolutelyclear. Addition or deletion of a party is not a matter of initial jurisdiction, butthat of exercise of judicial discretion. The distinction between necessary andproper party is also well marked. In the case of Mumbai InternationalAirport Private Limited Vs. Regency Convention Centre and HotelsPrivate Limited and Ors.2, the Supreme Court has enunciated that anecessary party is a person who ought to have been joined as a party and inwhose absence no effective decree could be passed at all by the court. If a‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. A‘proper party’ is a party who, though not a necessary party, is a person whosepresence would enable the court to completely, effectively and adequatelyadjudicate upon all matters in dispute in the suit, though he need to be aperson in favour of or against whom the decree is to be made. If a person isnot found to be a proper or necessary party, the court has no jurisdiction toimplead him, against the wishes of the Plaintiff.

When a party seeks impleadment in the suit, the said party must have adirect interest in the subject matter of the suit in contradistinction tocommercial interest. (Ramesh Hirachand Kundanmal V/s. Municipal2(2010) 7 SCC 417SSP 4/7 28 wp 366 of 2026.docCorporation of Greater Bombay3).

In the instant case, it is imperative to note, in the year 2013 itself, as thelearned Civil Judge has recorded, few of the original Defendants had filed apursis before the Trial Court and divulged the names of the persons who werein the actual occupation of the subject premises. It does not appear that the Plaintiffs took steps to implead them.

The documents placed on record by the newly impleaded Defendants, prima facie, indicate that they have been in the occupation of the suit propertysince long. Learned Civil Judge was, therefore, justified in taking a primafacie view of the matter as regards the interest of the newly impleadedDefendants in the subject matter of the suit.

As noted above, the Plaintiffs are seeking declaration of title andrecovery of possession of the suit property. The Plaintiffs claim that theoccupants of the said Gawali Chawl are all unauthorized occupants andtrespassers. In such a situation, where the newly impleaded Defendantshave succeeded in demonstrating that they are prima facie in possession andoccupation of the portions of the suit property since long, it is not open for the Plaintiffs to seek a decree of declaration and possession by impleadingpersons as party Defendants to the suit who are not in the actual possessionof the portions of the suit property. 3(1992) 2 SCC 524SSP 5/7 28 wp 366 of 2026.doc15.Reliance placed by Mr. Lanjekar on the decision in the case of NAKEngineering Company Pvt. Ltd. (supra), does not seem to be well foundedas, in the said case, the Supreme Court observed in clear terms that, therewas not an iota of material to indicate that the relief, as claimed in the suitagainst Respondent No.3, if granted, would be implemented against the Appellant. Therefore, the appellant therein was not a necessary party to thesuit.

The situation in hand is converse. The newly impleaded Defendantsclaimed that, despite the factum of their possession being brought on record, the Plaintiffs chose not to implead them. In such a situation, where the newlyimpleaded Defendants are prima facie shown to be in the occupation andpossession of the portions of the suit property, their impleadment as partyDefendants cannot be resisted by submitting that the newly impleadedDefendants may resist the execution on the ground that the decree would notbind them. Such a submission runs counter to the very object of conferringpower on the Court to implead parties to the suit, whose presence appearsnecessary for the complete and effectual adjudication of the dispute and, inwhose absence, no effective decree can be passed. The Writ Petition, therefore, does not deserve to be entertained.

At this stage, Mr. Lanjekar, learned Counsel for the Petitionerssubmitted that, few of the Defendants who were already impleaded as partySSP 6/7 28 wp 366 of 2026.docdefendants also joined in filing the instant application for impleadment.

If that is the case, the learned Civil Judge is requested to consider, whether any of the applicants in the application for impleadment were alreadyimpleaded as party Defendants to the suit and, if any of the applicants werealready on record as Defendants, pass appropriate order for their deletion asnewly impleaded Defendants.

Needless to clarify that, such of the applicants, who have already beenimpleaded as original Defendants, shall be bound by the orders that mighthave been already passed against them in the said suit.