Bombay High Court
Shri Narendra S/O Dharnidharji ... vs Nanakchandra S/O Shaddilal ... on 2 March, 2017
Bench: Z.A. Haq
Judgment 1 wp4636.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4636 OF 2016
Shri Narendra S/o. Dharnidharji Gandhi,
Aged 50 years, Occupation : Business,
R/o. 40, Balaji Nagar, Nagpur.
.... PETITIONER.
// VERSUS //
1. Nanakchandra S/o. Shaddilal
Agrawal, Aged 79 years, Occupation:
Advocate, R/o. 509, Agrasen Road,
Dharampeth, Nagpur.
2. Smt. Kiran W/o. Narendra Suryawanshi,
Aged : 65 years, Occupation : Housewife,
R/o. Laxmi Niwas, Agrasen Marg,
Dharampeth, Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri R.R.Srivastava, Advocate for Petitioner.
Shri N.S.Agrawal, Advocate for Respondent No.1.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MARCH 02, 2017.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
Judgment 2 wp4636.16.odt
3. Respondent No.1 has filed Regular Civil Suit No. 1343 of 2007
against the respondent No.2 praying for a decree for permanent injunction
restraining the respondent No.2 from undertaking any construction on Plot
No.256 or creating any third party interest. In the body of the plaint the
respondent No.1 (Plaintiff in Regular Civil Suit No. 1243 of 2007) has also
referred to Plot No.257.
4. The present petitioner has filed Special Civil Suit No. 291 of
2013 impleading the present respondent No.2 and three others as defendants
and has prayed for decree for specific performance of agreement to sell
alleged to have been registered on 30 th August, 2008 in respect of Plot Nos.
256 and 257.
5. The present petitioner filed application (Exh.17) under Order 1
Rule 10 read with Order 22 Rule 10 read with Section 151 of the Code of
Civil Procedure praying that the plaintiff in Regular Civil Suit No. 1343 of
2007 be directed to implead him as defendant in the suit. This application is
rejected by the order dated 28 th October, 2015. The present petitioner filed
application (Exh.23) seeking review of the above order, however, this
application is also rejected on 12 th July, 2016. Both these orders are
challenged in the present petition.
Judgment 3 wp4636.16.odt
6. After examining the plaints of both the civil suits, the copies of
which are placed on record, it is clear that the plaintiff in Regular Civil Suit
No. 1343 of 2007 (present respondent No.1) and the plaintiff in Special Civil
Suit No. 291 of 2013 are seeking relief in respect of the same property i.e.
Plot Nos. 256 and 257 and against the same defendant-Smt. Kiran Narendra
Suryawanshi (present respondent No.2). Overlooking this aspect the learned
trial Judge has rejected the applications filed by the petitioner observing that
the petitioner has not filed any documentary evidence on record to
substantiate that he is necessary party in Regular Civil Suit No. 1343 of 2007.
The petitioner has filed Special Civil Suit No. 291 of 2013 seeking decree for
specific performance of agreement to sell in respect of the same property
which is subject matter of Regular Civil Suit No. 1343 of 2007 and the
plaintiff in Regular Civil Suit No. 1343 of 2007 has prayed for injunction
restraining the defendant in Regular Civil Suit No. 1343 of 2007 who is also
defendant No.1 in Special Civil Suit No. 291 of 2013 from creating any third
party interest in that property. The present petitioner, though may not be
necessary party but is a proper party to the civil suit and the failure on the
part of the learned trial Judge to appreciate this aspect vitiates the impugned
order.
Hence, the following order :
i) The impugned orders are set aside.
Judgment 4 wp4636.16.odt
ii) The application (Exh.17) filed by the present petitioner is
allowed.
iii) Present respondent No.1 (plaintiff in Regular Civil Suit No.1343
of 2007) is directed to implead the present petitioner as
defendant.
Rule made absolute in the above terms. In the circumstances,
the parties to bear their own costs.
JUDGE
RRaut..
