Minalini Lalit Modi vs M/S. Kishinchand Chellaram And ...
2017 Latest Caselaw 7272 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                          Writ Petition NO. 2446 OF 2017


 Minalini Lalit Modi.                                     )
 Age 51 Years, Occ.Business                               )
 residing at Carmichael House,                            )
 3rd floor, Carmichael Road,                              )
 Mumbai-400026.                                           )...Petitioner


         Versus


 1.M/s.Kishinchand Chellaram                              )
 having its address at Gazdar House,                      )
 Girgaon Road, Mumbai-400002.                             )


 2.Shri.Shashi P.Jain                                     )
 Age 74 years, Occ.:Business                              )
 having his address at                                    )
 C/o.Dhanamal Silk Mills Pvt.Ltd.                         )
 Dadi Mansion, Behind Metro Cinema,                       )
 Mumbai-400020.                                           )...Respondents



 Mr.Vijay   Thorat,   Senior   Counsel   with   Mrs.Ranjana   Parikh   with  
 Mr.Naresh Rathani, for the Petitioners.

 Mr.S.M.Gorwadkar, Senior Counsel i/b. Mr.Pritesh Vyas, for Respondent  
 no.1.

                                     ----------



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                                        CORAM :         G.S.Kulkarni, J.

                                 Reserved on    :        26th July,2017

                                  Pronounced on  :     19th September,2017
                                          ----
 JUDGMENT:

1. Rule returnable forthwith. Respondents waive service. By

consent of the parties heard finally.

2. The learned trial judge of the Small Causes Court at

Mumbai by an order dated 25 August 2009 allowed an application

(Eviction Notice) filed by the petitioner seeking a relief to implead

her as a defendant in a Suit (RAE Suit No.743/2805 of 1982-

Eviction Suit) instituted by respondent No.1-landlord (plaintiff). The

appellate bench of the Small Causes Court by the impugned order

dated 21 October 2016 has set aside the order of the learned trial

judge in a Revision Application filed by respondent No.1. The

petitioner being aggrieved by the said order of the appellate bench is

before this Court in the present proceeding under Article 227 of the

Constitution.

3. In nutshell the facts are :-

About thirty five years back Respondent No.1 had

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instituted R.A.E.Suit No.743/2805 of 1982 seeking eviction of

respondent no.2-tenant from the suit premises namely a flat on the

northern side, on the third floor, Carmichael House, Carmichael

Road, Mumbai, (for short 'the suit flat') interalia on the ground of

causing damage to the said tenanted premises. Surprisingly as also

unfortunately this suit since 1982 is pending adjudication before the

learned Judge of the Small Causes Court at Bombay. On 28

September 2006, by filing interim notice No.2205 of 2006, being an

application under Order 1 Rule 10 of the Code of Civil Procedure,

the petitioner sought herself to be impleaded as a party defendant to

the suit, on the ground that the petitioner is the 'real tenant' of the

suit flat and not the respondent No.2.

4. The petitioner's case in the impleadment application was

thus:- the petitioner, respondent no.1 (plaintiff), and respondent

no.2 (defendant) are related to each other. The building, Carmichael

House originally comprised of ground plus five floors having two flats

on each floor. In or about 1955, petitioner's father Mr.Pessumal

Aswani rented out one flat on the first floor of the said building at

which time respondent no.1 (plaintiff) was not the owner of the

building. In the year 1965, the suit building was acquired by three

trusts and three individuals namely Mrs. Lachmibai Sewakram Trust,

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Mrs.Nirmalabai Murli Trust, Mr.Pishu Tahilram Chellaram (since

deceased) and Mr.Hotchand G.Advani (since deceased). The

petitioner's father was rented out two flats on the fourth and fifth

floor which were internally connected with each other. On renting

out these two flats, the petitioner's father gave up tenancy of the first

floor flat.

5. The petitioner was married to one Mr.Jack Sagrani, who

was residing in Nigeria and London. After her marriage, the

petitioner was residing in London and would visit India quite often as

many of the relatives, friends, acquaintances, including her parents

were in Mumbai. The petitioner's husband had no place of residence

in Mumbai, therefore the petitioner was in search of an

accommodation. The petitioner also wanted a flat in the vicinity of

the suit building as her parents were residing in the suit building. In

or about 1979 the suit flat being vacant and as the landlords were

desirous of letting the same, one Mr.Murli Chellaram who was

incharge of the affairs of the building and who was aware that the

petitioner was on a look out for a residential accommodation in

Mumbai, informed the petitioner that the suit premises were

available to be let out. Mr.Murli Chellaram however stated that it will

not be possible nor advisable to make out a rent receipt in the

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petitioner's name, as the petitioner's father was already having three

flats in the suit building. Thus, making a rent receipt in the

petitioner's name for the fourth flat will not be advisable and will also

create problems as another relative of the owner, was also keen on

renting out the said flat. Mr.Murli Chellaram therefore suggested

that the suit premises could be let out to the petitioner but the

petitioner should try to find out some other person, closely connected

with the family and who would be prepared to lend his name on the

rent receipt and on whom the petitioner could have confidence. As

the petitioner was keen on renting out the suit flat, to remain close to

her parents and her sister who was daughter-in-law of Mr.Murli

Chellaram, it was thought appropriate that the tenancy be created by

issuing rent receipt in the name of respondent no.2 (defendant), as

respondent No.2 was closely related to the petitioner's family being

married to the maternal aunt of the petitioner. The petitioner had

stated that they were also holding property for each other at Kashipur

in Uttaranchal. The petitioner and her parents thus had full

confidence in respondent no.2. Mr.Murli Chellaram was agreeable to

have a rent receipt made out in the name of respondent no.2.

Respondent no.2 was accordingly persuaded by the petitioner and

her parents and Mr.Murli Chellaram to allow his name to be shown

on the rent receipt. In these circumstances, the petitioner was let out

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the suit flat and took possession of the same. However, as per the

said arrangement, as arrived between respondent no.1 (plaintiff), the

petitioner and respondent no.2 (defendant), the name of respondent

no.2 was shown on the rent receipt. Respondent no.2 was already

having residential flat in Mumbai, in a building known as 'Meher

Apartments'. It was only to oblige the petitioner in view of the close

family relations, that respondent no.2 had agreed to lend his name to

be shown on the rent receipt. Further for the purpose of renting out

the suit flat, the petitioner had discussions with her husband Mr.Jack

Sagrani and to enable her to rent the suit flat, her husband

transferred a sum of US $ 75000 from his account to the swiss

account of Mr.Murli Chellaram as a premium, for renting out the flat

to the petitioner. Thus, the petitioner was in possession of the suit flat

from the inception of the tenancy and that the petitioner was bearing

all the expenses of upkeep, maintenance and renovation of the suit

flat and was remitting all the expenses through proper banking

channels to respondent no.2-tenant and he was disbursing the same.

The marriage of the petitioner with Mr.Jack Sagrani resulted in a

divorce in the year 1989. There were proceedings in the High Court

of Justice in London, for financial settlement consequent upon their

separation. In the said proceedings the petitioner's former husband

Mr.Jack Sagrani had confirmed the fact of payment of US $ 75000 on

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petitioner's behalf for acquiring the suit flat. It is further, the case of

the petitioner, that for income tax and wealth tax purposes, the

petitioner had shown the address of the suit flat. She has other

documents like driving licence, telephone connection, cooking gas

connection, bank account, insurance policy and various other

documents bearing the address of the suit flat. The petitioner's case

is also that she had made correspondence for renovation,

upkeepment and maintenance of the suit flat. Her stay has also been

recognized in some correspondence with the landlords. Thus, to the

knowledge of respondent no.1-plaintiff, the name of respondent

no.2/defendant, was used merely for the purpose of the rent receipt.

The eviction suit in question (1982 suit) as instituted by respondent

no.1 against respondent no.2 will directly affect the petitioner's rights

of tenancy on the suit flat. In the absence of the petitioner, the suit

cannot be effectively adjudicated as the suit is filed against a wrong

person. Thus, the petitioner was a necessary party to the suit.

6. The petitioner also contended that at the end of the year

2005, there were meetings between the tenants and the landlords of

the building for converting tenancy into ownership and for

establishing a condominium of the building Carmichael House. As

the tenancy rights are likely to be converted into ownership, the

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petitioner was advised that from the taxation point of view and for

protection of the petitioners rights, it was necessary for the petitioner

to put up correct facts in the pending eviction proceedings in regard

to the suit flat and and assert her tenancy rights, so that no

complication happens at a later stage when the conversion from the

tenancy rights into ownership rights would take place. Accordingly,

the petitioner was advised to make an application in the eviction suit

filed by respondent no.1, and get her impleaded as a party defendant

to the suit. The petitioner therefore is the real tenant and mere

issuance of rent bill in favour of respondent no.2 is not conclusive to

establish the relationship that of tenant and landlord.

7. The petitioner's impleadment application was opposed

on behalf of the landlord/respondent no.1 by filing a reply.

Respondent no.1 contended that the petitioner's application was

frivolous as also mischievous, and was filed with the sole intention to

delay the adjudication of the 1982 suit and continue to deprive

respondent no.1 of his entitlement to the suit premises. Respondent

no.1 denied that the petitioner was at any time a tenant or a real

tenant of the suit flat or that the tenancy was created in her favour.

It is the case of respondent no.1 that the suit flat was earlier let out to

one Mr.Ratan Lal who was the original tenant and who by his letter

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dated 28 February 1979 informed Mr.Murli Chellaram that he was

surrendering his tenancy in favour of the defendant (respondent

no.2). Mr.Ratan Lal had also pointed out that respondent

no.2(tenant) was earlier occupying the suit flat as his licensee.

Respondent No.1 contended that it was ill conceivable that the suit

flat was rented out by respondent no.1 to the petitioner. Respondent

no.1 stated that in respect of flats on the fourth floor and the fifth

floor, the petitioner's brother Mr.Ravi Aswani was the tenant and

therefore, there was no impediment to make a rent receipt in the

name of the petitioner, had the petitioner really taken the flat on

rent. It is stated that the case which is tried to be made out by the

petitioner was never the case of the defendant (respondent no.2) in

the written statement, as filed in the suit, as also in the companion

eviction Suit No.949/2123 of 1995. Respondent no.1 has contended

that it was significant that although according to the petitioner, she

was divorced from her husband in the year 1989 the petitioner never

asserted her right of tenancy in the suit flat nor at any point of time,

the petitioner thought it appropriate to bring this fact to the notice of

the court or respondent no.1. It was further contended that it was

indeed surprising for the petitioner to make out such a case without

any material whatsoever to substantiate the same and assert that the

petitioner be impleaded as a party to the suit. Respondent No.1

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stated that, as a matter of fact, it has been a consistent case of

respondent no.1 that the defendant (respondent no.2), had acquired

alternate accommodation and was not using the suit premises for the

purpose for which it was let out, on which ground the suit for

eviction was instituted by respondent no.1. The case that respondent

no.2 had taken a rent receipt in his name only to oblige the petitioner

was denied by respondent no.1. It is stated that in fact from the

correspondence exchanged between the advocates for respondent

no.1 and respondent no.2, it was clear that respondent no.2 was the

tenant of the suit flat. It is stated that a false case was put up by the

petitioner that she is the real tenant of the suit flat. It is further

contended that the case of Mr.Murli Chellaram receiving rent receipt

of US $ 75,000 was completely alien to the contract of tenancy which

was between respondent no.1 and respondent no.2. Mr.Murli

Chellaram had nothing to do with the suit flat in his individual

capacity. It was further contended that the question of accepting

such premium is also not possible, as the law prohibited recovering

any premium from the tenant and hence, the question of petitioner

paying any premium would not arise. It was contended that the

petitioner had also failed to annex any document to show the alleged

transfer of US $ 75000 or any receipt, to show that the transfer was

made for acquiring tenancy right of the suit premises. The case of

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remittance put up by the petitioner also had no relevance having

taken place after filing of the eviction suit. It was contended that it

was clear that such case of remittance is made out only to create

some evidence. As regards the documents as relied upon by the

petitioner, respondent no.1 contends that all the documents are of the

period subsequent to filing of the suit which would show that the

petitioner was trying to create evidence of possession of the suit

premises. As regards the contention about the meeting between the

landlords and tenants for conversion of tenancy into ownership, the

same is denied by respondent no.1. It is denied that the petitioner

was present for any meeting as alleged. In paragraph 14 of the reply,

there is a categorical denial by respondent no.1 of the petitioner's

case that respondent no.2's name was lent on the rent receipt.

Respondent No.1 denied that the petitioner had rights of any nature

whatsoever in the suit flat, and hence, the question of the result of

the suit affecting the alleged rights of tenancy of the petitioner, would

not arise. Further the petitioner's contention of a settled possession of

the suit flat was also denied. Respondent No.1 contended that

petitioner was thus not a necessary party to the suit. It is contended

by respondent no.1 that the intention of the petitioner was to prolong

the old proceedings. It was contended that the petitioner presence

before the Court was not necessary to adjudicate the issues involved

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in the suit and that the application was frivolous.

8. The learned trial Judge after hearing the parties on this

impleadment application of the petitioner, by an order dated 25

August 2009 held that though the rent receipts were issued in favour

of respondent no.2 - tenant, nonetheless the documents post filing of

the suit as produced were sufficient to show the petitioner's

possession of the suit flat for a long time. The learned trial judge

referring to the decision of the learned Single Judge of this court in

"Gulab Babusaheb Bargiri Vs. Executive Engineer, M.S.E.B. & Ors"1

observed that the principle of 'dominus litus' cannot be applied in all

the cases. The relevant observations on the basis of which the

impleadment application was allowed by the learned trial judge, can

be found in paragraph 12 of the order which reads thus:-

"12. By this application applicant wants plaintiff to implead her as defendant. Which defences will be available and which will not be available to her is not to be decided at this stage. Applicant has produced sufficient documents to show her possession on suit premises for a long time. No doubt, as pointed out by learned advocate, these documents are of the period during lis pendence. But only on that count, at this stage, it cannot be said that the applicant has created these documents for delaying the proceedings. As observed in the case of Gulab Babusaheb Bargiri cited by applicant, that when third party comes to the Court seeking impleadment, it is different incident than the defendant's asking for such impleadment. It is observed that principle of dominus litus cannot be applied in all cases.

Considering the material placed on record, ratios

1 2001(1) Mh.L.J.63

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laid down in cited cases and submissions of both sides, I hold that the applicant needs to be impleaded as a party defendant. To give full opportunity of context and to avoid multiplicity of the proceedings the application is necessary to be allowed. The submissions of learned advocate for plaintiff cannot be accepted. The submissions of learned advocate for applicant hold merits... ... ... ..."

9. Respondent No.1 -landlord being aggrieved by the said

order dated 25 August 2009 passed by the learned trial judge,

approached the appellate bench of the Small Causes Court, in a

revision application as filed under Section 29(3) of the Bombay Rent

Act, on several legal and factual grounds contending that the order

passed by the learned trial judge was perverse and illegal. Some of

the grounds as urged on behalf of respondent no.1 in the revision can

be set out as under:-

(i) The learned trial judge had failed to decide the proposition as

to whether the petitioner was either a necessary or proper party to

the suit and more particularly in view of the clear provision of Order

1 Rule 10 of the Civil Procedure Code.

(ii) The principle that the plaintiff is dominus litis and thus the

petitioner could not have joined as a party to the suit against the

wish of the plaintiff, is not considered in the correct perspective as

per the settled principles of law on this doctrine.

(iii) The application for impleadment was filed on 28 September

2006 by the petitioner more than seventeen years after the

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petitioner's own showing that she had become entitled to tenancy

rights in the year 1989. In an application under Order 1 Rule 10 of

C.P.C, the question of limitation is always significant to be decided ,

considering the law as laid down in "Alkapuri Co-op. Housing

Society Ltd. Vs. Jayantibhai Naginbhai (deceased) through LRs."2

(iv) Under Section 18 of the Bombay Rent Act,1947, payment and

acceptance of such premium was prohibited and constituted an

offence and as such a case of payment of premium could not have

been pleaded and accepted by the learned trial judge.

(v) The case of the petitioner that respondent no.2 - tenant has

merely lent his name for the purpose of creation of tenancy in her

favour and that she is a real tenant of the suit premises, cannot be

legally recognized inasmuch as such a plea for benami tenancy is not

tenable as held in the decision of this Court in the case "M.S.Shastri

Vs. Hilla M.Batliwalla & Anr"3.

(vi) In a suit of the landlord (respondent no.1) against the tenant

(respondent no.2) for eviction and recovery of possession, a third

party cannot be joined or impleaded to enlarge the scope of the

landlord's suit or change the complexion of the suit. Considering the

nature of the suit, the petitioner was not a necessary party for the

decision of the question involved in the suit.

 2 AIR 2009 SC 1948
 3 1989(1) Bom.C.R.138





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(vii) The petitioner was always free to establish her claim and title

as a tenant in independent proceedings.

(viii) The plea of Benami tenancy could not have been decided by

the Small Causes Court exercising the jurisdiction under Section 28 of

the Bombay Rent Act and it was necessary for the petitioner to file

appropriate proceedings before the competent court.

(ix) The impleadment application of the petitioner was nothing but

an attempt to prolong the suits i.e. the first suit of 1982 and the

second suit of the year 1995.

10. The appellate bench of the Small Causes Court by the

impugned judgment and order dated 21 October 2016 accepting the

case of respondent no.1 allowed the revision application and set

aside the order passed by the learned trial judge. It was observed

that there was no material on record whereby the petitioner would be

required to be held as a proper and necessary party, as the documents

as placed on record and relied by the petitioner were pertaining to

the period during which the suit was pending. It was observed that

in any case these documents had no independent bearing upon the

issue of eviction. It was observed that the learned trial Judge had

overlooked that respondent no.1 (plaintiff) was dominus litis and the

petitioner in the facts of the case could not have been impleaded in

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the proceeding, against the wish of respondent no.1-plaintiff. It was

further observed that the application for impleadment was at a

belated stage and the learned trial Judge was swayed away by the

alleged arrangement during the divorce proceedings of the petitioner

and her husband of the year 1989. It was observed that neither the

petitioner nor the husband of the petitioner Mr.Jack Sagrani had a

locus standi in the proceedings of the suit or privity of contract in so

far as the tenancy in question is concerned. It was further observed

that the plea that the petitioner was real a tenant was a plea of a

"benami tenancy", only to seek an entry in the suit proceedings, and

the same was not sustainable under the rent legislation, as also in

view of the decision of this Court in M.S.Shastri Vs. Hilla

M.Batliwalla & Anr. (supra). It is further observed that the

defendant (respondent no.2)in the written statement or anywhere

else had not put forth that respondent no.2 was not the real tenant

or in possession of the suit flat. On the contrary respondent no.2 was

defending the suit as the tenant of respondent no.1. Thus, the case

was of a rival claim of tenancy as set up by the petitioner. It was

observed that accepting such a plea would amount to changing the

scope of the suit at the behest of the petitioner who is a third party,

by converting the eviction suit into a tenancy declaratory suit. It was

observed that the petitioner could have approached the appropriate

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court to seek a declaration of her tenancy rights. It was observed that

the suit in question was filed in the year 1982, the application of the

petitioner was not an application under Order 6 Rule 17 of the C.P.C.,

but under Order 1 Rule 10 of the C.P.C., and therefore, the period of

limitation was also required to be considered, as the petitioner for the

first time had made such a plea of tenancy in the suit in the year

2006, and thus the application of the petitioner was required to be

held as barred by limitation. As regards the contention of the

petitioner that the revision as preferred by respondent no.1 was not

maintainable, relying on the decision of the Full Bench of this court

in the case "Bhartiben Shah & Anr. Vs. Gracy Thomas & Ors." 4 it

was observed that the order as passed by the learned trial Judge

directing impleadment of the petitioner as a party respondent

affected substantive rights of respondent no.1-plaintiff by which the

petitioner foisted herself as a party defendant to the suit in question.

Thus, the contention on the basis of the said decision of the Court

that the revision was not maintainable, was rejected.

11. On the above background, the petitioner being aggrieved

by the above order passed by the appellate bench of the Small Causes

Court has preferred this Writ Petition. Mr.Thorat, learned Senior

4 2013(2) Bom.C.R.1

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Counsel for the petitioner assailing the impugned order has made the

following submissions:-

(i) The revision as preferred by respondent no.1 and decided by

the appellate bench was not maintainable inasmuch as the order

passed by the learned trial Judge directing impleading of the

petitioner as defendant no.2 was an order passed on the application

under Order 1 Rule 10 and thus was a procedural and discretionary

order for which the revisionary jurisdiction could not have been

invoked by respondent no.1. This submission is being supported

relying on the decision of the Full Bench of this Court in Bhartiben

Shah & Anr. Vs. Gracy Thomas & Ors.(supra)

(ii) The impugned order overlooks the settled position in law that

the endeavour of the court should be to avoid multiplicity of

proceedings. If the impugned order as passed by the appellate bench

is accepted, then the same would require the petitioner to file

independent proceedings which would lead to multiplicity of the

proceedings.

(iii) The appellate bench has overlooked the legal position that the

rent receipt does not conclusively prove that a person in whose

favour it is issued, would become a tenant. The plea as taken by the

petitioner that respondent no.2 (defendant) was not real tenant was

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an acceptable plea.

(iv) The issue of delay is not relevant in considering the application

under Order 1 Rule 10 of the CPC.

(v) Respondent no.1 had not raised the plea of benami tenancy in

the reply filed to oppose the petitioner's impleadment application and

hence, such a plea could not have been accepted.

(vi) The appellate bench ought to have held on the basis of the

documents that the petitioner was in fact the tenant of the suit flat.

In support of these submissions, Mr.Thorat, learned

Senior Counsel for the petitioner has placed reliance on the decisions

of this Court in the case "Umar Alli Chougalle & Ors. Vs.

Dr.A.H.K.Jumani"5; "Sh.Srirang Subraia Kamat Tarcar & Ors. Vs.

The Administrative Tribunal & Ors."6; "Gulab Babusaheb Bargiri

Vs. Executive Engineer, M.S.E.B. & Ors."(supra), and

"Chandrakant Dharma Bhonu Vs. Pandurang Ramchandra

Dandekar & Anr."7 as also the judgment of the Supreme Court in the

case "Savitri Devi Vs. District Judge, Gorakhpur & Ors."8;

5 Civil Revision Appln.No.1953 of 1962, Order dt.2.3.1968 6 All India Rent Control Journal VIII-1991(2), 252 7 2004 Vol.106(4) Bom.L.R. 680 8 AIR 1999 SC 976

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12. Per contra Mr.Gorwadkar, learned Senior Counsel for

respondent no.1/landlord would submit that the impugned order

passed by the appellate bench is well founded and is on a correct

appreciation of facts and the law. Mr.Gorwadkar submits that the

contention as urged on behalf of the petitioner that the revision as

preferred before the appellate bench was not maintainable, cannot be

accepted as the Full Bench of this Court in Bhartiben Shah & Anr.

Vs. Gracy Thomas & Ors (supra) has held that once the substantive

rights of the parties under the Bombay Rent Act were affected and

endangered, the appellate bench was very well within its power to

exercise its revisionary jurisdiction. Mr.Gorwadkar would further

submit that as rightly held by the appellate bench, the attempt on the

part of the petitioner to file an impleadment application in the year

2006 was a belated attempt of pursuing, the so called legal rights,

which had accrued to the petitioner in the year 1979 to be asserted in

the year 2006. Mr.Gorwadkar would submit that the observation that

the application of the petitioner itself was barred by limitation, would

be correct in the facts of the case, considering the decision of the

Supreme Court in "Alkapuri Co-op. Housing Society Ltd. Vs.

Jayantibhai Naginbhai (deceased) through LRs." (supra),

Mr.Gorwadkar submits that in fact the attempt of the petitioner by

making an application for impleading her as defendant no.2 to the

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suit is in the nature of a back-door entry of the petitioner to assert a

claim which the petitioner otherwise cannot sustain in independent

proceedings. It is submitted that if the petitioner was conscious of

the fact that she is a tenant, then the petitioner ought to have

adopted appropriate proceedings seeking declaration of the

petitioner's right as a tenant at the appropriate time and as

permissible in law. It is submitted that having not done so, the

appellate bench is correct in concluding that the adjudication of her

rights in the suit of respondent no.1-landlord would be changing the

scope of the suit. Mr.Gorwadkar submits that the first suit

(R.A.E.Suit No.743/2805 of 1982) and the second suit (R.A.E.Suit

No.949/2123 of 1995) as instituted by respondent no.1, are on

independent grounds, the first suit is on an acquisition of alternate

premises, by respondent no.2-tenant, causing damage to the suit

premises etc, and second suit on the ground of non user.

Mr.Gorwardkar submits that admittedly in the written statement filed

on behalf of respondent no.2-tenant on 6 October 1982, there is not a

whisper on behalf of the respondent no.2 that since 1979, respondent

no.2-tenant is not in occupation of the premises but it is the

petitioner who was enjoying the suit flat as a tenant. Mr.Gorwadkar,

therefore, submits that any dispute inter se between respondent no.2

and the petitioner cannot be a subject matter of the suit in question

Pvr 22 wp2446-17.doc

as instituted by respondent no.1, in which the relief is to seek

eviction of respondent no.2 tenant. Mr.Gorwadkar submits that the

principle of dominus litis has been appropriately recognized by the

appellate bench in reversing the order passed by the learned trial

judge. It is submitted that thus there is no perversity in the findings

as recorded by the appellate court inasmuch as the appellate bench

has correctly appreciated that the documents on which the petitioner

sought to assert her rights of tenancy in the suit flat were the

documents post filing of the suit and thus, no credence can be

granted to such assertion. Mr.Gorwadkar further submits that in any

event there is no privity between respondent no.1-landlord and the

petitioner of any nature and thus, the petitioner was surely not a

necessary or a proper party to the suit. In support of his contentions,

Mr.Gorwadkar has placed reliance on the decisions in "Nandkishor

Savalaram Malu (dead) through L.Rs. Vs. Hanumanmal G.Biyani

(Dead) through L.Rs."9 and "M.S.Shastri vs. Hilla M.Batliwalla &

Ors."10

13. I have heard the learned Counsel for the parties and with

their assistance, I have perused the orders as passed by the learned

trial judge as also the impugned order passed by the appellate bench, 9 2017(3) Mh.L.J. 37 10 1989(1) BomCR 138

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and the pleadings and the documents as placed on record.

14. At the outset, it may be noted that the petitioner's

application was an application under Order 1 Rule 10 the C.P.C.

seeking impleadment in the eviction suit instituted by respondent

no.1/landlord in the year 1982 ((RAE Suit No.743/2805 of 1982).

This suit came to be instituted by respondent no.1 against respondent

no.2 on the ground that respondent no.2-tenant had acquired

alternate premises as also was guilty of undertaking some demolition,

amounting to waste of the premises. It is not in dispute that the

another suit came to be instituted by respondent no.1 seeking

eviction of respondent no.2 -tenant on the ground of non user being

suit no. 949/2123 of 1995. It is not in dispute that both these suits

are contested by respondent no.2-tenant in his independent capacity.

In these suits written statements are filed by respondent no.2 in

which respondent no.2 has nowhere stated that it is the petitioner

who is in occupation of the premises or for that matter any rights are

created in the petitioner much less that the petitioner is enjoying the

occupation or possession of the premises as a tenant. This

undisputed position in my opinion is fatal to the impleadment plea as

raised by the petitioner in the impleadment application. This for the

reason that the petitioner is asserting and setting up an altogether

Pvr 24 wp2446-17.doc

different plea and a plea hostile to the plea of the tenant who is

asserting his own rights. If this be the position, then, such dispute is

completely alien to respondent no.1's suit which is instituted against

respondent no.2 - tenant for ejectment on the ground available to

evict the tenant under the Bombay Rent Act. Such a plea certainly

would change the basic character of respondent no1's suit.

15. There is another significant aspect namely that the

petitioner has very consciously asserted in the impleadment

application, as noted above, that she has been inducted in the

premises in the year 1979 and for that matter the rights are further

crystallized in the year 1989 when her husband Mr.Jack Sagrani has

made payment of US $ 75000 in favour of Mr.Murli Chellaram.

Although it is a correct observation of the appellate Bench that such a

payment can have no relevance as it is not a payment to respondent

no.1 for anything to do between the petitioner and respondent no.1

pertaining to the flat, nonetheless what is material is that with this

consciousness, the petitioner failed to assert her right to initiate

independent proceedings to claim any tenancy either against

respondent no.1-landlord or against respondent no.2-tenant. Thus

there is much substance in the submission of Mr.Gorwadkar that the

petitioner having failed to assert her basic right, for such long lapse

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of time, is now attempting a back door entry seeking adjudication of

her rights as a tenant, which in any event is not permissible to be

done in the eviction suit filed by respondent no.1. Mr.Gorwadkar

would be right in contending that determination of the rights of the

petitioner who has no privity with respondent no.1-landlord was

completely alien to the eviction suit of respondent no.1. The effect of

the order passed by the learned trial Judge permitting impleadment

of the petitioner, in my opinion, would completely change the

structure and scope of the suit as instituted by respondent no.1.

16. Further it is well settled that the plaintiff is 'dominus

litus' that is a master, or having dominion over the case and is a

person who has carriage and control of an action. The learned

appellate bench has appropriately recognized this principle observing

that this was a case where the petitioner was trying to foist herself in

a old pending suit for the first time in the year 2006 setting up a case

that respondent no.2 - defendant is not the real tenant and that the

petitioner is the real tenant.

17. It was appropriate for the learned appellate bench to

observe that the plea of the petitioner as seen from several averments

in the impleadment application was nothing but a plea of benami

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tenancy being asserted by her. The decision of the learned Single

Judge of this Court in M.S.Shastri Vs. Hilla M.Batliwalla & Anr.

was appropriately relied by respondent no.1 wherein the Court has

observed that if a benami transaction was recognized in creation of a

tenancy, then, the basic feature of leases will stand vanished. The

learned Single Judge in considering the plea of benami transaction

qua a lease has made the following observations:-

"9. The 1st aspect of the question is as to whether it is open for a person to contend that a person who is mentioned in the lease-deed as a tenant is only a benamidar and further, to come out with such contention not against a third party but against the landlord.

In first place, I find it to be an untenable proposition even on first principles. In my opinion, the tenancy relationship is not only a property relationship, but also a personal relationship. It gives rise not only to rights in rem, but also rights in personnam. A lease is no doubt a property and creation of lease does amount, in a sense, transfer of property. But it is not an absolute transfer; in a sense that a sale or gift is an absolute transfer. Under section 10 of the Transfer of Property Act, a transfer subject to a condition of limitation absolutely restraining a transferee or any person claiming under him from transferring or disposing of his interest in the property gives rise to the effect that the condition or limitation is void. This means that no one can sell or mortgage a property on the condition that the transferee will not, in this turn, further transfer the same. But this Rule is subjected to an exception by said Section 10 itself, because said Section 10 further provides that a lease may contain a condition for the benefit of the lessor prohibiting transfer of the lessor's right to any other person. This is the precise reason why a lessee can be prohibited by the lessor prohibiting him from assigning the lease or from creating a further sub-lease. The rationale behind this law is that a lessor is entitled to say that he will lease the land to "A" but not to "B". He is fully within his right to choose the persons to whom he would give the property on lease. He can give it to "A" and refuse to give it to "B" and no one can ask him as to why he is making such discrimination. No one can prevail upon the

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lessor to choose his lessee. That is the basic feature of the transaction of lease and law relating to the lease.

If a benami transaction was recognised in the law of Lease, this entire basic feature of leases will vanish, I will take a simple illustration: "B" approaches "A" for lease for his land. 'A' has a face set not to lease it to 'B'. 'B' cannot set up 'C' as a benamidar to take lease from 'A' and contend against 'A' in the future that 'C' was only a benamidar and that 'B' was the real lessee. The lessor's right to choose the personnel of his lessee is, thus, wholly defeated by such benami transaction. Such transactions, therefore, cannot be countenanced by the law itself.

Moreover, in any event, it cannot be countenanced at least against the landlord. A landlord cannot be told by a 3rd party that when his lessee took the lease from him, he was in fact cheating him and that the real lessee was the 3rd party and that the lessee was a mere benamidar. The lease would be voidable on this account itself, because it is brought about by such fraud. The lessor never wanted it to give to the 3rd party and by practising fraud on the lessor the 3rd party proposes to take that lease. It will be wholly a voidable transaction. As to what will happen if the lessor has no objection to the benami nature is not for me to consider at this stage. I keep my fingers crossed on the question whether a person can tell rest of the world, other than the landlord, that he is the real tenant in respect of certain property belonging to the landlord and not the person shown as the lessee in the Lease Deed executed between the lessor and the person shown in the lease as a lessee. Against the landlord in any event, such a contention is just not tenable.

I may hasten to observe that there may be cases where the landlord himself may be a party to such a benami transaction, that he knows that the person named as a lessee is only a benamidar and that he was agreeable to the name of the real tenant being concealed behind the screen of the benamidar. I do not wish to decide as to what would be the legal position in such a case. Point is that in the absence of any such plea or evidence it would not be open for any person to go on cocking snoozes at the landlord telling him that he had been made a fool of and that the real tenant was somebody else. "

The contention of Mr.Thorat is that the observations in last paragraph

of the above decision of the learned Single Judge would assist the

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petitioners, however, in my opinion, they would not assist the

petitioner, as there is no material in the present case to show that

respondent no.1 - landlord has in any manner accepted the petitioner

as a real tenant. There is not an iota of material, for the petitioner to

make out any case can rely on the last paragraph of the above

observations. In any case the paragraph which Mr.Thorat relies does

not lay down any legal position. In any event this cannot be an

assertion of the petitioner in an eviction suit as filed by respondent

no.1.

18. As regards the contention as urged on behalf of the

petitioner that the rent receipt would not conclusively decide the

rights of tenancy relying on the unreported judgment of the learned

Single Judge of this Court in the case Umar Alli Chougalle & Ors.

Vs. Dr.A.H.K.Jumani (supra). The contention cannot be accepted.

This was a case in which a dispute arose under the provisions of

Order XXI Rule 100 of the C.P.C where the petitioners had asserted a

case in the execution proceedings that they had taken room No.3,

from opponent no.1 who was the owner of the said building and that

the room was taken alongwith the several persons, and it was agreed

between them that the receipt for the rent paid, should be made out

only in the name of one of them namely Idris Yakub Chougule. It is

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in that context the Court was examining the plea of co-tenancy and in

such facts and circumstances, the Court observed that if the rent bills

are made in the name of one, tenancy right may be possessed by

another or by one in whose name rent bill is made alongwith the

others. Surely, the case in hand is not the one where the petitioner is

asserting any co-tenancy, nor the present proceedings are arising is an

issue as raised in the execution proceedings.

19. The decision of the Goa Bench of this Court in the case

'Sh.Srirang Subraia Kamat Tarcar & Ors. Vs. The Administrative

Tribunal & Ors.'(supra) also would not help the petitioner to support

the proposition that the petitioner was claiming an independent

tenancy and therefore, she is required to be impleaded as defendant

to the suit. This for the reason that this decision does not take into

consideration Section 4 of the Benami Transaction (Prohibition)

Act,1988 or the consequence of the said provision. It also does not

consider the decision of the learned Judge of this Court in the case

M.S.Shastri Vs. Hilla M.Batliwalla & Anr. (supra) which deals with

the application of Section 4 of the Benami Transaction (Prohibition)

Act,1988. In the present case the facts are completely different.

Further reliance on the decision in "Sh.Srirang Subraia Kamat

Tarcar & Ors." would be misconceived as in the said case the

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petitioners were stated to be bonafide tenants by the original tenant

who was living in the premises since 1964. It is in this context the

Court had accepted the case of the petitioners therein that they were

necessary parties to the eviction action initiated by the landlord.

20. On behalf of the petitioner reliance is placed on the

decision of the Supreme Court in the case Savitri Devi Vs. District

Judge, Gorakhpur & Ors. (supra) to support the contention that

Order 1 Rule 10 of the C.P.C. enables the court to add any person as a

party, at any stage of the proceeding, provided such person is a

necessary party in order to enable the Court to effectually and

completely adjudicate and settle the questions involved in the suit

and to avoid multiplicity of the proceeding. There can be no dispute

on the proposition which is laid down in this decision. However, the

question remains as to whether the petitioner is a necessary party on

the nature of the case asserted by her. In my opinion, the

observations of the Supreme Court in paragraph 11 referring to the

decision in the case "Ramesh Hirachand Kundanmal V. Municipal

Corporation of Gr.Bombay"11 would support respondent no.1,

wherein the Supreme Court holds that the plaintiff is "dominus litis"

and not bound to sue every possible adverse claimant in the same

11 (1992)2 SCC 524

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suit and that addition of parties is a matter of judicial discretion,

which is required to be exercised in the facts and circumstances of a

particular case. The Court observed that it is only when the person

concerned has direct interest in the action, only in such a situation a

party can be impleaded. In the said case respondent Nos.3 to 5 who

had moved an application for impleadment had substantial interest

inasmuch as the defendants thereunder had sold some shares in the

land to the respondents under a registered sale deed and in view of

that sale deed respondent 3 to 5 had moved an application under

Order 1 Rule 10 of the CPC for impleading them as party to the suit.

They had paid the sale consideration before executing the sale deed

as also the possession of the subject matter of the sale deed was

handed over to them. It is in this context the Court has made

observations in paragraphs 2 to 11. On these facts itself the said

decision is of no assistance to the petitioner.

21. Further the reliance of the petitioner on the decision of

the learned Single Judge of this Court in the case "Gulab Babusaheb

Bargiri Vs. Executive Engineer, M.S.E.B. & Ors." (supra) would also

not assist the petitioner as in the facts as noted by the Court in

paragraph 8 of the said decision, in an earlier suit respondent nos.3

and 4 therein, were made parties as the electricity connection was in

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the name of respondent nos.3 and 4 and through which electricity

connection the plaintiff was running a power-loom. This suit was

dismissed on merit. After this a second suit in question came to be

filed on the same cause of action. In the paragraph describing the

cause of action to file the suit, the plaintiff therein clearly stated that

the electricity connection was standing in the name of respondent

no.3. However, respondent nos.3 and 4 were not made party to the

subsequent suit and thus they moved an impleadment application

which came to be allowed by the Court. It is in these facts the Court

examined the issue of "dominus litis" and the exceptions therefor on

the legal principles as contained in paragraph 7 of the said direction.

There can be no dispute, however, as noted above, this decision in

the present facts would not in any manner assist the petitioner.

22. In my opinion the reliance on behalf of the petitioner on

the decision of the learned Single Judge of this Court in the case

"Chandrakant Dharma Bhonu Vs. Pandurang Ramchandra

Dandekar & Anr." (supra) is also not well founded. In the said case

the court observed that the petitioner was directly and substantially

affected by the unauthorised, construction which is alleged to be

carried out by respondent no.1, wherein the grievance of the

petitioner was that inaction of the Corporation was due to the clout

Pvr 33 wp2446-17.doc

wielded by respondent no.1. The petitioner had filed an application

for impleadment in a suit which was filed by respondent no.1 which

came to be rejected by the learned trial Judge. On this conspectus,

the Court examined the issue of "dominus litis" to say that

undoubtedly the plaintiff is "dominus litis" and that it is on the

principle which has been laid down in Vimadalal, J. in Jivanlal

Damodardas Wani Vs. Narayan Ukha SaliI12 contending the facts of

the case the Court observed that having regard to the provisions of

Order 1 Rule 10 of the CPC, it cannot be said that the application of

impleadment which was moved by the petitioner in the facts of the

case, was misconceived. It was observed that that the petitioner was

directly and substantially concerned and affected by the proceedings

filed before the City Civil Court, as the petitioner was the owner of

the adjoining structure to that of respondent no.1. These facts clearly

show that this decision was wholly in applicable to the facts of the

present case.

23. Both the learned Senior Counsel have placed reliance on

the decision of the Full Bench of this Court in the case "Bhartiben

Shah & Anr. Vs. Gracy Thomas & Ors." (supra) on the issue of

maintainability of the revision application. Mr.Thorat, learned Senior

12 AIR 1972 Bom.148

Pvr 34 wp2446-17.doc

Counsel for the petitioner has placed reliance on this decision in

support of his contention that the revision would not be maintainable

before the appellate bench against the order passed by the court on

the application under Order 1 Rule 10 of the CPC, as it is a

procedural and discretionary order. However Mr.Gorwadkar, learned

Senior Counsel for respondent no.1 would contend that the revision

was maintainable inasmuch as the order passed by the learned trial

judge on the impleadment application affected the substantial rights

of respondent no.1. In my opinion, considering the observations of

the Full Bench as made in paragraph 63, Mr.Gorwadkar would be

correct in his contention that the revision would be maintainable as

the order as passed by the trial court, in the present case affected the

substantive rights of respondent no.1, as it is a case where the

petitioner sought to foist herself to be impleaded as a defendant, a

consequence of which was that the nature, character and the scope of

the plaintiff's suit for eviction and possession, against respondent

no.2 was sought to be altered, the petitioner raising an issue of

declaration that she is the real tenant of the suit flat. As noted above,

such a cause was an independent cause if it had so arisen to the

petitioner, and for which the petitioner always had a remedy, to adopt

appropriate proceedings in accordance with law. The observations of

the Full Bench of this Court, in paragraph 63 of the decision, in my

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opinion, would assist respondent no.1 so as to conclude that the

revision application was certainly maintainable, in the facts of the

present case. This also for the reason that the substantive rights of

respondent no.1 under the Bombay Rent Act to assert an entitlement

to a decree would stand prejudiced and affected by completely

changing the nature of the suit, if the plea of the petitioner was to be

accepted which was to raise an altogether new question which do not

at all arise in the suit of respondent no.1. Such plea would certainly

affect the foundation of the case of respondent no.1. It would be

appropriate to note the observations in paragraphs 63, 84, 85, 86 and

87 which reads thus:-

"63. We agree that Section 29(3) of the Old Rent Act and Section 34(4)of the New Rent Act are not restricted only to orders for possession or rent, but at the same time it does not mean that all non- appealable orders of the Special Court under the Rent Act are revisable. It is true that orders may not be orders for possession or fixation or recovery of rent, but the orders must directly affect the substantive rights of the parties under the Rent Act or some other substantive law and not merely affect the rights of the parties under a procedural law like CPC or Evidence Act. Looking to the language of section 29(3) of the Old Rent Act and section 34(4) of the New Rent Act ("that the decree or order was made according to law"), we see no justification for restricting revisions to orders affecting substantive rights only under the Rent Act. ... ... ...

84. In the result, therefore, our answer to question No.2 referred for our consideration is as under:-

A revision application under Section 34(4) of the Maharashtra Rent Control Act, 1999 is not maintainable in respect of a procedural order passed under the Code of Civil Procedure in a suit arising out of Maharashtra Rent Control Act, if such order does not affect the rights of parties under the Maharashtra Rent Control Act or any other substantive law. While an order to be revisable need

Pvr 36 wp2446-17.doc

not necessarily be an order for possession or fixation or recovery of rent, nevertheless, the order sought to be revised must directly affect the substantive rights and liabilities of parties under the Maharashtra Rent Control Act or any other substantive law, but not merely rights under a procedural law like the Code of Civil Procedure or the Evidence Act.

85. For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

86. Following are instances of revisable orders.

(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law

(ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC

(iii) an order allowing or rejecting an application for a declaration that the suit has abated

(iv) an order refusing to extend the time for filing a written statement

(v) an order for deleting an issue pertaining to rights or liabilities under the Rent Act, or any other substantive law. This list is illustrative and not exhaustive.

87. Following are instances of orders which would not be revisable orders:-

(i) an order granting leave to amend plaint or written statement

(ii) an order granting extension of time to file written statement

(iii) an order raising additional issue

(iv) an order made for production of documents or discovery or inspection.

(v) an order directing a plaintiff/defendant to furnish better and further particulars

(vi) an order issuing or refusing to issue a commission for examination of witnesses.

(vii) an order issuing or refusing to issue summons for additional witness or document viii) an order condoning delay in filing documents, after the first date of hearing.

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(ix) an order of costs to one of the parties for its default

(x) an order granting or refusing an adjournment

(xi) an order allowing an application for restoration of the suit under Order 9 Rule 4 of CPC.

This list is also illustrative and not exhaustive."

24. Considering the facts of the case, one more aspect which

is significant and which is required to be noted is the specific plea as

asserted by the petitioner in the impleadment application justifying

her impleadment. The same can be found in paragraph 14 of the

application wherein the petitioner says that the need for

impleadment has arisen as the tenancy rights are now being

converted into ownership rights and as set out by her in the said

paragraph and not for any other purpose. Paragraph 14 of the

application reads thus:-

"14. Recently, during the end of the year 2005, meetings were held between the tenants and the landlords of the suit building for the purpose of converting tenancy into ownership rights in favour of respective tenants. An offer was made by tenants to the landlords in September 2005 for the purpose of conversion of tenancy rights of each of the tenants into ownership rights and for establishing a condominium of Carmichael House. The building Carmichael house requires major repairs. It was though that by converting the tenancy right into ownership one, required funds for the repairs would be generated easily. Thus, from the amounts so collected agreed amount due to the landlords would be paid and also repairs to the building would be carried out. Tenants also sought legal opinion under the MHADA Act to get the tenanted premises converted into ownership as the building is a pre 1940 construction. Tenants were advised that they could acquire the ownership rights either by negotiations with the landlords or by making an application for acquiring the building under the MHADA Act. Tenants were also advised that tenants rights to acquire the property under MHADA was under challenge

Pvr 38 wp2446-17.doc

before the Supreme Court. In this view of the matter, several negotiations have been held and are going on with the landlords. Since the tenancy rights are likely to be converted into ownership rights, I am advised that from the taxation point of view and from the other points of view and for protection of my rights, it would be necessary for me to now put the correct facts in the proceedings now pending relating to the suit flat and assert my tenancy rights in respect thereof so that no complications arise at a later stage when the conversion from the tenancy rights to the ownership rights take place. Accordingly, I am now advised to make an application before this Hon'ble Court setting out the real and correct facts regarding tenancy and to get myself impleaded as a party to this suit."

It is surprising as to how the petitioner could have made these

averments when admittedly no independent proceedings were filed

by her to seek a declaration of her rights as a tenant except for the

fact that the petitioner has some other motives, as these averments

reflect. Secondly it cannot be overlooked that if such a plea is

accepted, an assertion which is completely alien to the requirement

of law for the court to be satisfied to consider any application under

Order 1 Rule 10 of the C.P.C. would be accepted. A plain look at the

averments in paragraph 14 (supra) of the impleadment application,

in my opinion, reveals the real intention of the petitioner.

25. Thus there is much substance in the contention as urged

on behalf of respondent no.1. The reliance of Mr.Gorwadkar on the

recent decision of the Supreme Court in "Nandkishor Savalaram

Malu (dead) through L.Rs. Vs. Hanumanmal G.Biyani (dead)

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through L.Rs." (supra) is apposite, in contending that the only

necessary party to the suit in question was respondent no.2 -the

tenant, and the petitioner would not become a necessary or a proper

party. This was a case in which the appellant had impleaded

defendant no.1 who was an employee of the tenant firm. The tenant

firm had suffered a decree, however, the suit was dismissed against

defendant no.1. Aggrieved by the learned trial Judge not passing a

decree against defendant no.1, plaintiff no.2 filed an appeal before

the learned District Judge who allowed the appeal and decreed the

suit against all the defendants and held that defendant no.1 being an

employee of the firm is bound by the decree passed against the firm

and its partners (defendant nos.2 to 9). The High Court in revision

upset the order passed by the learned District Judge and maintained

the order passed by the learned trial Judge. This order of the High

Court came to be challenged in the proceedings before the Supreme

Court. It is in this context, their Lordships of the Supreme Court

made following observations in paragraph 30 which read thus:-

"30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party".

26. Further Mr.Gorwadkar, learned Senior Counsel for

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respondent no.1 would be correct in submitting that the Court in

considering the impleadment application under the provisions of

Order I Rule 10 of CPC for impleadment of a third party, the question

of limitation becomes relevant considerating the provisions of Order I

Rule 10 Sub-rule (5) of Code of Civil Procedure. This for the reason

that by such impleadment, the basic cause which was asserted at the

time of filing of suit and in the present case in the year 1982 when

the suit came to be instituted by respondent no.1 is sought to be

altered by the impleadment application of the petitioner. The effect

of amendment, therefore, relates back to the basic cause of action

which accrued to respondent no.1 in the year 1982 and for that

matter in the year 1995 when the second suit came to be filed.

Mr.Gorwadkar's reliance on the decision of the Supreme in Alkapuri

Co-op. Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased)

through LRs. (supra) in supporting this proposition, is apposite. The

Supreme Court in a similar context has made the following

observations:-

"15. It is neither in doubt nor in dispute that the court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded not only the provisions of O.VI R.17, Code of Civil Procedure (C.P.C.) but also the

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provisions of O.I R.10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub- rule (5) of Rule 10 of Order I, C.P.C., the question of invoking the period of limitation would come in." (emphasis supplied)

27. In the light of the above observations, this Writ Petition

lacks merit. It is accordingly rejected.

(G.S.Kulkarni, J.)