Bombay High Court
Yamuna Babarao Guru (Dadmal) And ... vs Pandurang S/O Ganpat Gholse And ... on 7 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5780/2014
1. Yamuna Babarao Guru (Dadmal),
aged about 45 Yrs., Occu. Household,
R/o Bazar Chowk Narkhed,
Tah. Narkhed, Distt. Nagpur.
2. Kusun alias Chabi Rupchand Narnavre,
aged about 50 Yrs., Occu. Agriculture,
R/o Khandala Jamer, Tah. Mouda,
Distt. Nagpur. ..Petitioners.
..Versus..
1. Pandurang S/o Ganpat Ghodse,
aged about Major, Occu. Business,
R/o House No.828, Near Bank Chowk,
Main Road Belona, Tah. Narkhed,
Distt. Nagpur.
2. Mahadeo Raghunath Gajbe (Diwan),
aged about 63 Yrs., Occu. Retired,
R/o Plot No.38, Shrihari Nagar No.1,
Manewada, Ring Road, Nagpur.
3. Baburao Raghunath Gajbe (Diwan),
aged about 67 Yrs., Occu. Retired,
R/o Belona, Tah. Narkhed, Distt. Nagpur. ..Respondents.
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Shri N.V. Fulzele, Advocate for the petitioners.
Shri S.M. Nafde, Advocate for the respondent No.1.
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CORAM : Z.A. HAQ, J.
DATE : 7.6.2016
ORAL JUDGMENT
1. Heard Shri N.V. Fulzele, Advocate for the petitioners and Shri S.M. Nafde,
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Advocate for the respondent No.1. None appears for the respondent Nos.2 and 3.
2. Rule. Rule made returnable forthwith.
3. The respondent No.1 - plaintiff has filed civil suit against the respondent
Nos.2 and 3 (defendants) praying for decree for specific performance of contract
dated 16th January, 2001. In this civil suit, the petitioners filed an application (Exh.
No.11) under Order 1 Rule 10 of the Code of Civil Procedure contending that the
civil suit is filed by the plaintiff praying for decree for specific performance of contract
in respect of the suit property which is the ancestral property of the respondent
Nos.2 and 3 and the petitioners and, therefore, the petitioners are necessary parties
to the civil suit. The respondent No.1 - plaintiff opposed the application on the
ground that the contract of the sale is between the respondent No.1 and the
respondent Nos.2 and 3 and the petitioners are not party to the contract and,
therefore, they are neither necessary nor proper parties to the civil suit. The learned
trial Judge considered the rival contentions and by the impugned order rejected the
application (Exh. No.11).
4. Shri N.V. Fulzele, Advocate for the petitioners has pointed out the
observations of the trial Court that the petitioners may be proper parties and has
submitted that the trial Court has committed an error in rejecting the application
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(Exh. No.11) on the erroneous consideration that as the petitioners are not party to
the contract enforcement of which is sought by the plaintiff, the petitioners cannot be
permitted to participate in the proceedings.
5. Shri S.M. Nafde, Advocate for the respondent No.1 has submitted that the
conclusions of the trail Court are proper and are in consonance with the law laid
down by the Hon'ble Supreme Court in the judgment given in the case of Kasturi
V/s. Iyyamperumal and others reported in AIR 2005 SC 2813. It is submitted that
the trial Court has not committed any error of jurisdiction and this Court may not
interfere with the impugned order.
6. After hearing the learned Advocates for the respective parties, I find that the
learned trial Judge has opined that the petitioners may be proper parties. The
learned trial Judge has rejected the application (Exh. No.11) recording that as the
petitioners are not party to the contract of which enforcement is sought by the
plaintiff, the petitioners cannot be permitted to get themselves impleaded as parties
in the civil suit. In my view, considering the facts of the case, specially the claim of
the petitioners that the suit property is an ancestral property of respondent No.1 and
petitioners, the view taken by the learned trial Judge is not sustainable. The
judgment relied upon on behalf of the respondent No.1 also does not assist the
respondent No.1 in view of the facts recorded above.
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7. Hence, the following order:
(i) The impugned order is set aside.
(ii) The application (Exh. No.11) filed by the petitioners is allowed and they are
permitted to get themselves impleaded as defendants in the civil suit.
(iii) The trial Court shall permit the petitioners to participate in the proceedings.
(iv) Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
