Madhuri D/O Ramdas Panchapudhe ... vs Ramdas S/O Govindrao Panchbudhe ...
2017 Latest Caselaw 3605 Bom

 WP 1412.16.odt                       1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.1412 OF 2016


 1]     Madhuri d/o Ramdas Panchpudhe,
        Aged about 37 years,
        Occupation-Agriculturist,
        R/o. Dhamangaon, Tahsil-Mouda,
        District-Nagpur.

 2]     Smt. Kusum w/o Dyalrao Zanzad,
        Aged about 55 years,
        Occupation-Agriculturist,
        R/o. Sitepar, Tahsil-Mohadi,
        District-Bhandara.

 3]     Smt. Shilpa w/o Ram Aswale,
        Aged about 53 years,
        Occupation-Agriculturist,
        R/o. Khamtalab, Bhandara.

 4]     Smt. Pushpa w/o Kanchan Bhoyar,
        Aged about 51 years,
        Occupation-Agriculturist,
        R/o. Diamond Nagar, Nagpur.

 5]     Smt. Geeta w/o Vinayak Zanzad,
        Aged about 47 years,
        Occupation-Agriculturist,
        R/o. Itwari, Nagpur.

 6]     Smt. Bharti w/o Bhumeshwar Bondre,
        Aged about 45 years,
        Occupation-Agriculturist,
        R/o. Mohadi, District-Bhandara.

 7]     Smt. Padma w/o Dulichand Raghorte,
        Aged about 43 years,
        Occupation-Agriculturist, R/o.Gandhi Chowk,
        Bhandara.



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 8]     Smt. Varsha w/o Muneshwar Bhoyar,
        Aged about 41 years,
        Occupation-Agriculturist,
        R/o. Pendhari, Tah. Lakhni,
        District-Bhandara.          ..                            Petitioners

                               .. Versus ..

 1]     Ramdas s/o Govindrao Panchbudhe,
        Aged about 85 years,
        Occupation-Agriculturist,
        R/o. Dhamangao, Post-Marodi,
        Tah. Mouda, Distt. Nagpur.

 2]     Dilip s/o Ramdas Panchbudhe,
        Aged about 49 years,
        Occupation-Agriculturist,
        R/o. Dhamangao, Post-Marodi,
        Tah. Mouda, Distt. Nagpur.

 3]     Baburao s/o Mahadeorao Tidke,
        Aged about 70 years,
        Occupation-Business,
        R/o. Plot No.4, Hill Road,
        Ram Nagar, Nagpur.            ..                        Respondents


                    ..........
 Shri A.J. Thakkar, Adv. for petitioners,
 Shri M.R. Joharapurkar, Adv. for respondent nos.1 and 2,
 Shri C.V. Kale, Adv. for respondent no.3.
                               ..........


                               CORAM : KUM. INDIRA JAIN, J.
                               DATED : JUNE 23, 2017.




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 ORAL JUDGMENT

                Rule.          Rule made returnable forthwith.                Heard

 finally with the consent of the learned counsel for the

 parties.


 2]             This writ petition takes an exception to the order

 dated 26.10.2015 passed by the learned Civil Judge, Junior

 Division, Mouda below Exh.35 in R.C.S. No.42/2012 rejecting

 the application for addition of parties under Order I Rule 10,

 CPC moved by plaintiffs.


 3]             The facts giving rise to the petition may be stated

 in brief as under :

                (i)             Petitioners are the plaintiffs in suit. Suit

 is     for     partition,        possession,    declaration,         permanent

 injunction and cancellation of sale deed.                    Defendant no.3

 filed written statement on 18.4.2011. The same was taken

 on record after permission to file written statement was

 granted to defendant no.3.

                (ii)            In the written statement, it is submitted

 by defendant no.3 that he has already mortgaged the land

 purchased vide sale deed dated 17.6.1985 to Tirupati Urban

 Co-operative Bank Limited, Nagpur and the said land is

 under charge of the aforesaid cooperative society.                               The



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 learned counsel for plaintiffs received copy of written

 statement on 3.10.2015 and then moved an application for

 addition of the said cooperative bank on 26.10.2015.


 4]             In view of this specific contention raised by

 defendant no.3, Tirupati Urban Co-operative Bank Limited,

 Nagpur would be a necessary party and the presence of the

 said      cooperative         bank     is   necessary          to     decide         the

 controversy effectively between the parties.


 5]             It appears from the impugned order that on the

 ground of delay, application for addition of parties came to

 be rejected.           The chronological events would indicate that

 there was no deliberate delay on the part of petitioners. The

 order of rejection on Exh.35, therefore, does not sustain in

 law. Hence, the following order :

                               ORDER

(i) Writ Petition No.1412 of 2016 is allowed.

(ii) Impugned order dated 26.10.2015 passed below

Exh.35 in R.C.S. No.42/2012 stands quashed and set aside.

(iii) Application (Exh.35) is allowed.

(iv) Plaintiffs are allowed to add Tirupati Urban

Co-operative Bank Limited, Nagpur as defendant no.2.

(v) Necessary amendment shall be carried out within

a period of two weeks from today.

(vi) After addition of defendant no.2, trial court to

proceed with the suit in accordance with the law.

(vii) Rule is made absolute in the above terms. No

costs.

(Kum. Indira Jain, J.) Gulande, PA