Sudhir Haribhau Babar vs Aniruddha Ramdas Bairagi And Ors
2021 Latest Caselaw 1811 Bom

                                    1                   WP-2151-2019.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 2151 OF 2019

                    SUDHIR S/O HARIBHAU BABAR
                                VERSUS
           ANIRUDDHA S/O RAMDAS BAIRAGI AND OTHERS
                                    .....
             Advocate for the Petitioner : Mr. D. A. Mane h/f
                             Mr. P. A. Bharat
          Advocate for Respondent Nos. 1 & 2 : Mr. V. B. Jagtap
          Advocate for Respondent Nos. 3 to 6 : Mr. Y. V. Kakade
                                    .....

                                   CORAM : V. K. JADHAV, J.

DATED : 28TH JANUARY, 2021

PER COURT :-

1. Heard finally with consent at admission stage.

2. The petitioner is the original plaintiff. The petitioner

has instituted a suit bearing Special Civil Suit No. 89 of 2016

for specific performance of contract. In the pending suit,

respondent nos. 3 to 6 herein have filed an application

Exhibit 30 under Order I Rule 10 of the Civil Procedure Code

for impleading them as party defendants in the suit. The

learned 10th Joint Civil Judge Senior Division, Ahmednagar,

by order dated 22.01.2019 below Exhibit 30 in Special Civil

vre/-

2 WP-2151-2019.odt

Suit No. 89 of 2016, allowed the said application directing to

add respondent nos. 3 to 6 herein as party defendants in the

suit. Hence this Writ Petition.

3. Learned counsel for the petitioner submits that the

petitioner/plaintiff has instituted the suit for specific

performance of contract and as such, respondent nos. 3 to 6

herein are neither necessary nor proper parties to the suit.

The petitioner-plaintiff is the master of the suit and

considering the prayer in the suit about specific performance

of contract, the parties to the contract can only be the parties

to the suit.

4. Learned counsel for the petitioner further submits that

respondent nos. 3 to 6 have instituted Regular Civil Suit No.

17 of 2012 before learned Civil Judge Junior Division,

Shevgaon and the Principal District Judge, Ahmednagar has

transferred the said suit from the files of Civil Judge Junior

Division, Shevgaon to the court of Civil Judge Senior

Division, Ahmednagar with a direction to club Regular Civil

vre/-

3 WP-2151-2019.odt

Suit no. 17 of 2012 with Special Civil Suit No. 89 of 2016

and decide the two suits simultaneously in order to avoid

conflicting decisions. Learned counsel submits that thus the

application moved below Exhibit 30 at belated stage was not

at all maintainable. Learned counsel for the petitioner, in

order to substantiate his contention, placed reliance in a case

Mulchand K. Ranka and Another v. Hitesh C. Jhaveri and

Others, reported in 2012 (3) Bom. C.R. 33.

5. Learned counsel for respondent Nos. 3 to 6 submits

that respondent nos. 3 to 6 have instituted Regular Civil Suit

No. 17 of 2012 in respect of the same suit property for

declaration, partition and separate possession along with a

decree of perpetual injunction against the present petitioner

and the respondents/original defendants. Learned counsel

submit that in the said suit, a prayer is also made in respect

of an agreement to sale to be declared as not binding on

respondent nos. 3 to 6. Learned counsel submits that the

ratio laid down by three Judges Bench in the case of Kasturi

v. Iyyamperumal and Others, reported in (2005) 6 SCC 733

vre/-

4 WP-2151-2019.odt

is distinguished in the case Sumtibai and Others v. Paras

Finance Co., Rg. Partnership Firm Beawer (Raj.) Through

Mankanwar w/o Parasmal Chordia (Dead) & Others,

reported in AIR 2007 SC 3166, and it is held that the

decision in Kasturi's case (supra) can only be understood to

mean that a third party cannot be impleaded in a suit for

specific performance if he has no semblance of title in the

property in dispute. In the instant case, respondent nos. 3 to

6 have prima facie shown the semblance of title or interest

and they can certainly file an application for impleadment.

6. I have also heard learned counsel for respondent nos.

1 and 2.

7. The petitioner-plaintiff has instituted the suit for

specific performance of contract in respect of land gat no.

119 to the extent of 1 H. 78 R. It has been specifically

pleaded in the said suit that the suit land was standing in the

name of deceased Godabai Pandu Sable and after her death

the said land was transferred in the name of Mandakini

vre/-

5 WP-2151-2019.odt

Bhujang Pawar, Mangala Bhujang Pawar and Sunanda

Bhujang Pawar respectively. Said Mangala Bhujang Pawar

was married to respondent/defendant no.2 Ramdas and

defendant no.1 is her son. After death of Mangala, the said

agricultural land was mutated in the name of defendant nos.

1 and 2. Thereafter, the other two sisters Mandakini and

Sunanda, on 25.11.2008, executed a deed of relinquishment

in respect of the said property in favour of defendant nos.1 &

2. Thus, defendant nos. 1 and 2 became the exclusive

owners in possession of the suit property. It has been further

pleaded that those defendants have executed isar pavti in

respect of the said suit property, however, failed to execute

the sale deed even accepting the part payment. Thus, the

suit for specific performance came to be instituted.

8. Respondent no.3 Sundrabai, along with respondent

nos. 4 to 6, claims her share in the suit property and there

are specific allegations that the petitioner and defendant

nos. 1 and 2, in collusion, got executed the agreement to

sale in respect of the suit property. The petitioner is an estate

vre/-

6 WP-2151-2019.odt

agent indulged in the business of purchasing and selling of

the agricultural land.

9. In the backdrop of these pleadings, the ratio laid down

in the case of Sumtibai (surpa) is expressly applicable to the

facts and circumstances of the present case. The Supreme

Court, in para 14 of the judgment, has made the following

observations:

"14. In view of the aforesaid decisions we are of the opinion that Kasturi's case (supra) is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, it C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."

vre/-

7 WP-2151-2019.odt

10. In the instant case, respondent nos. 3 to 6 have shown

a fair semblance of title or interest. Thus, I find no fault in

the impugned order passed by the trial court allowing the

application Exhibit 30. There is no substance in the Writ

Petition. The Writ Petition is therefore dismissed.

( V. K. JADHAV, J. )

vre/-