Padmakar Bhimrao Mokase vs Nandu Sakharam Nagargoje And ...
2017 Latest Caselaw 9118 Bom

                                      1               WP - 1549-2014


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 1549 OF 2014

Padmakar s/o Bhimrao Mokase
Age: 46 years, Occ: Agri.,
R/o: Waghala, Tq. Pathri,
Dist. Parbhani                                 ..Petitioner

       Versus

1.     Nandu s/o Sakharam Nagargoje
       Age: 41 years, Occ: Service,

2.     Babu s/o Munjaji Sonwane,
       Age: 66 years, Occ: Agri.,

       Both R/o : Waghala, Tq. Pathri,
       Dist. Parbhani                         .. Respondents

                                  ...
Mr. Mayur Salunke, Advocate h/f Mr. V. D. Salunke, Advocate for
petitioner
Mr. Pratap P. Mandlik, Advocate for respondents
                                  ...

                                    CORAM : SUNIL P. DESHMUKH, J.

DATE : 28-11-2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned

counsel for the parties finally, by consent.

2. The petition is preferred against order dated 16-01-2014

upon application at exhibit-10 in regular civil suit no. 32 of 2013.

Petitioner is plaintiff in the same. During pendency of the petition,

while there had been reference in the written statement by

2 WP - 1549-2014

defendant to that about 1 Are land had been purchased by Babu

Sawane from plaintiff in the year 1993 and since then he had been

in possession of said piece of land. Whereas suit inter alia also claims

injunction for removal of tin shed situated on 1 Are land area from

defendant of which original defendant claims to be not in possession.

As such, for proper adjudication in the suit, an application had been

moved at exhibit-10 by original defendant adding said Babu as

defendant to the suit. The plaintiff had opposed the application.

Court has passed the order allowing application on 16-01-2014.

3. Learned counsel Mr. Salunke appearing for the petitioner

submits that plaintiff is dominus litus and, as such, he may suffer the

consequences of non impleading the party and, in the

circumstances, with reference to the contentions on behalf of the

defendant, it would not be proper to add Babu as party to the suit.

4. Mr. Mandlik, learned counsel appearing for the original

defendant as well as added party contends that application exhibit-

10 had been moved with material support in the form of document

dated 27-04-1993 which has been executed by plaintiff in favour of

Babu which represents that about 1 Are land has been sold by

plaintiff to said Babu. He further refers to that said Babu and

defendant have also filed regular civil suit no. 81 of 2013 for specific

performance against plaintiff which is pending.

3 WP - 1549-2014

5. Perusal of the impugned order shows that the court with

reference to the material on record had considered that, prima facie

Babu appears to have some interest over 1 Are land which gets

credibility since litigation is pending in the form of regular civil suit

no. 81 of 2013 and, as such, it had been considered necessary that

Babu Sawane be added as party to the pending suit.

6. As the trial court has considered in its discretion

presence of Babu before it in the suit filed by plaintiff, as necessary

for effectual adjudication of lis, the discretion so exercised can not be

flawed on any reasonable basis. As such, it does not appear to be a

case to indulge into the request made under the writ petition. Writ

petition is thus not entertained and is dismissed. Rule stands

discharged.

7. At this juncture, learned counsel for petitioner seeks

further indulgence into the request that trial court to go ahead

expeditiously with the suit.

8. As such, trial court may proceed with the suit as

expeditiously as possible.

[SUNIL P. DESHMUKH] JUDGE arp/