Bombay High Court
Smt. Meena W/O Madhukar Deshpande vs M/S. Shabde Consultants, Thr. Its ... on 2 May, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.410/2016
Smt. Meena W/o Madhukar Deshpande,
aged about 70 Yrs., Occu. Housewife,
Resident of Plot No.24-B and 25,
Durga Niwas, Congress Nagar,
Nagpur - 440 012. ..Petitioner.
..Vs..
1. M/s. Shabde Consultants,
a Proprietary concern, through its
Proprietor Shri Rajan s/o Vasant
Shabde, aged 60 Yrs., Occu. Business,
Resident of Dharampeth, Nagpur.
2. Smt. Nirmala Ramchandra Deshpande,
aged about 82 Yrs., Occu. Housewife.
3. Miss Vinita Ramchandra Deshpande,
aged about 55 Yrs., Occu. Housewife.
4. Shri Manoj S/o Ramchandra Deshpande,
aged about 52 Yrs., Occu. Consultant.
Respondent Nos.2 to 4 are Resident of
Apartment No.3, Narhari Prasad,
Gulmohar Park. Off. ITI Road, Aundh,
Pune - 411 007.
5. Shri Dinkar Damodar Deshpande,
aged about 78 Yrs., Occu. Retired.
6. Shri Sunil S/o Damodar Deshpande,
aged 75 Yrs., Occu. Agriculturist.
Respondent Nos.5 and 6 are Resident of
Plot No.24-B and 25, Durga Niwas,
Congress Nagar, Nagpur.
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7. M/s. Asia Developers through its
Proprietor Kamlesh Chandreshekhar
Dadhe, aged about 55 Yrs., Occu. Business,
Resident of Swami Apartment, Ramdaspeth,
Nagpur. ..Respondents.
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Shri C. S. Samudra, Advocate for the petitioner.
Shri C.V. Kale, Advocate for respondent No.1.
Shri A.V. Bhide, Advocate for respondent Nos.2 to 5.
Shri V.S. Mishra, Advocate for respondent No.7.
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CORAM : Z.A.HAQ, J.
DATE : 2.5.2017.
ORAL JUDGMENT
1. Heard Shri C. S. Samudra, Advocate for the petitioner, Shri C.V.
Kale, Advocate for the respondent No.1, Shri A.V. Bhide, Advocate for the
respondent Nos.2 to 5 and Shri V.S. Mishra, Advocate for respondent No.7.
None for the respondent No.6 though served.
2. Rule. Rule made returnable forthwith.
3. The defendant No.4 in Special Civil Suit No.167/2008 has
challenged the order passed by the trial Court by which the application (Exh.
No.73) filed by the present respondent No.7 under Order 1 Rule 10 of the Code
of Civil Procedure for permitting to get itself impleaded as plaintiff No.2 is
allowed.
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4. The Special Civil Suit No.167/2008 is filed by the present
respondent No.1 praying for decree for specific performance of contract dated
31st March, 2001 and for decree for declaration and permanent injunction. In
this civil suit, the present petitioner and the present respondent Nos.2 to 6 are
the defendants.
The present respondent No.7 has filed Special Civil Suit
No.566/2014 praying for decree for specific performance of contract
(memorandum of understanding) alleged to have been executed on 16 th
January, 2007. In this civil suit, the present petitioner, present respondent
No.1, present respondent No.5 and present respondent No.6 are the
defendants.
Both the civil suits are in respect of the same property.
In the Special Civil Suit No.167 of 2008, the present respondent
No.7 filed the application (Exh. No.73) which is allowed by the impugned
order.
The submission on behalf of the present petitioner (defendant No.4
in Special Civil Suit No.167/2008) is that the present respondent No.7 is not
party to the agreement dated 31st March, 2001 of which specific performance is
sought in Special Civil Suit No.167/2008 and, therefore, he cannot seek
impleadment as plaintiff No.2 in that civil suit. It is further submitted that the
present respondent No.7 has filed the Special Civil Suit No.566/2014
independently, seeking decree for specific performance of the alleged
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memorandum of understanding dated 16th January, 2007 on the basis of which
he claims right in the suit property and as his independent substantive claim is
not under consideration of the Court in the Special Civil Suit No. 167 of 2008,
he cannot be permitted to join as co-plaintiff in the suit. It is further submitted
that the interest of the present respondent No.7 can be protected if both the
civil suits are consolidated for trial.
The learned Advocates for the present respondent No.1 and
respondent No.7 have supported the impugned order.
After hearing the learned Advocates for the respective parties, I find
that the present respondent No.7 is claiming certain rights in respect of the
property which is the subject matter of Special Civil Suit No.167/2008. The
claim of the present respondent No.7 will have to be adjudicated. Considering
the facts of the case, I find that the learned trial Judge has properly appreciated
the controversy and has not committed any error by allowing the application
(Exh. No.73), though the present respondent No.7 has filed separate suit. The
learned trial Judge has not adverted to some relevant facts. The present
respondent No.1 (plaintiff in Special Civil Suit No.167/2008) filed the suit in
2008 seeking decree for specific performance of contract dated 31 st March,
2001, that the present respondent No.7 claims right on the basis of the
memorandum of understanding dated 16th January, 2007 and the application
(Exh. No.73) is filed in August / September, 2015. The learned trial Judge has
failed to record that the present respondent No.7 is permitted to come on
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record as plaintiff No.2 with effect from the date on which the application
(Exh. No.73) is filed.
With the above observation and modification, the impugned order is
maintained.
The petition is disposed of accordingly. In the circumstances, the
parties to bear their own costs.
JUDGE
Tambaskar.
