Bombay High Court
Waman S/O Baburao Khente vs Smt. Mona @ Seema Parveen Bashir ... on 2 February, 2021
Bench: V.M. Deshpande
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4458 OF 2017
Waman s/o Baburao Khente, Aged
about 61 years, occupation : agriculturist,
R/o at Tarkhed Musalman, Post
Kavhala, taluka Chikhli, district Buldhana. ..... Petitioner.
:: V E R S U S ::
1. Smt.Mona @ Seema Parveen
Bashir Patel, aged about 70 years,
occupation : household.
2. Rafique Patel Bashir Patel, aged
about 50 years, occupation : labour,
3. Nazadat @ Wajahad Patel Bashir
Patel, aged about 35 years, occupation:
labour.
4. Mubasshir Bashir Patel, Aged about
25 years, occupation : labour.
5. Nusrat @ Nusrat Bee Bashir Patel,
Aged about 40 years, occupation : household.
6. Ishrat Parveen Bashir Patel, aged
about 28 years, occupation : labour,
7. Sk.Mansoor Manna Patel, aged
about 74 years, occupation : labour.
8. Mohd.Jamil Manna Patel, aged
about 64 years, occupation : labour.
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9. Ab.Rafique Manna Patel, aged
about 55 years, occupation : labour.
10. Rumshan Bee w/o Rajdarkha, aged
about 67 years, occupation household.
Respondent No.1 to 10 are resident
of village Amdapur, taluka Chikhli, district
Buldhana.
11. Anisa Begum w/o Sk.Mirza, aged
about 63 years, occupation : household,
R/o Asola, taluka Chikhli, district
Buldhana.
12. Mohd. Shakil Patel Manna Patel,
Aged about 60 years, occupation:
agriculturist, r/o Amdapur, taluka
Chikhli, district Buldhana. ..... Respondents.
===================================
Shri T.S.Deshpande, Counsel for the petitioner.
None for respondents.
===================================
CORAM : V.M.DESHPANDE, J.
DATE : FEBRUARY 02, 2021
ORAL JUDGMENT
1. On 13.7.2017, in this writ petition notices of final
disposal were issued to respondents and at the time of issuing
notices this Court stayed effect and operation of order dated
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3.5.2017 passed by learned Joint Civil Judge Junior Division,
Chikhli, district Buldhana in RCS No.88/2016 which is challenged
in this writ petition.
2. Farad order shows that this writ petition is dismissed
against respondent Nos.2,7,9, and 10. Whereas, respondent
Nos.1,3,6,8,11, and 12 are duly served. Though there are 12
respondents in this writ petition, contesting respondent is only
respondent No.12 who is served with notice of final disposal and
in spite of the service of notice in the year 2019 he is not appearing
either in person or through his advocate before this Court.
3. Heard learned counsel Shri T.S.Deshpande for the
petitioner. Rule. Rule is made returnable forthwith.
4. The petitioner is original plaintiff. He filed a suit for
decree of perpetual injunction against respondent Nos.1 to 11 with
following prayers:
"1) pass a decree of Perpetual Injunction in
favour of plaintiff and against defendants,
wrongdoers, their agents, relations, associates,
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accordingly all of they be restrained
permanently from attempting to indulge in
unlawful, illegal activities and further from
creating disturbances in the smooth cultivating
possession and enjoyment of plaintiff and for
getting plaintiff forcibly ousted from over suit
property, that too, without taking legal
recourse, if any.
2) grant any other just and suitable relief
including costs of this suit, which this Hon'ble
Court deems, in the interest of justice."
In the suit, the defendants appeared and contested
claim of the petitioner/plaintiff. Initially, respondent No.12 in this
writ petition filed an application (Exhibit 32) in the said suit for
impleading him as intervenor. The said application was rejected by
learned Joint Civil Judge Junior Division, Chikhli on 26.9.2016.
According to learned counsel Shri T.S.Deshpande for the
petitioner/plaintiff, respondent No.12 did not challenge the said
order.
5. Thereafter, respondent No.12 filed application under
Order 1 Rule 10 sub rule 2 for joining him as defendant in the suit.
The said application is at Exhibit 48. The application was opposed
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by the petitioner/plaintiff. Vide order dated 3.5.2017 impugned in
this petition, learned Joint Civil Judge Junior Division, Chikhli
allowed the said application. Against the said, the present petition
is filed.
6. Contention of learned counsel for the petitioner is that
presence of respondent No.12, in respect of dispute between him
and original defendants, is not necessary.
7. Learned Judge of the Court below allowed the
application filed on behalf of respondent No.12 because, according
to learned Judge below, presence of respondent No.12 is necessary
in view of finding his name in 7/12 extract of gat no.729 as
possessor. Learned counsel for the petitioner, invited my attention
to reported judgment of this Court at Aurangabad bench in the
case of Ramesh s/o Shama Kumbhar and anr vs. Sudhakar s/o
Budha Kumbhar and ors, reported at 2013(3) ALL MR 196 to
submit that the writ petition needs to be allowed by quashing the
order.
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8. This Court in the case cited supra observed that any
order passed of injunction would bind only the parties to the suit.
The proposed party who is not party to the suit would not be
bound by the order in the suit. The petitioner being the plaintiff is
dominus litis of his case. Prayer clauses, which are reproduced
herein above, show that the suit was not for declaration but it was
for only injunction. The petitioner/plaintiff is taking risk of not
joining respondent No.12 as defendant though is in possession as
per revenue record.
9. In this view of the matter, even if the suit of the
petitioner/plaintiff is decreed and decree of injunction is granted,
that will not be binding on respondent No.12. Hence, I pass
following order:-
ORDER
(1) The writ petition is allowed.
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Judgment
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(2) Order dated 3.5.2017 passed by learned Joint Civil Judge
Junior Division, Chikhli, district Buldhana below Exhibit-48 in RCS
No.88/2016 is hereby quashed and set aside.
(3) It is made clear that in case RCS No.88/2016 is decreed in
favour of the petitioner/plaintiff, the said order of injunction shall
not be binding on respondent No.12 herein.
JUDGE
!! BRW !!
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