Sushilsingh Sahebsingh Hazari vs The State Of Maharashtra And ...
2021 Latest Caselaw 1998 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO. 1455 OF 2020

 Pramodkumar Sharadkumar Tiwari and others ... Petitioners
        Versus
 The State of Maharashtra and others              ... Respondents
                                   ....
 Mr. Shailesh P. Brahme, Advocate for petitioners
 Mr. S. N. Morampalle, AGP for respondent Nos. 1 to 3
 Mr. S. R. Kedar, Advocate for respondent Nos. 4 to 7
 Mr. V. B. Dhage, Advocate for respondent No.8
                                   ....

                                     WITH
                         WRIT PETITION NO. 2093 OF 2020

 Sushilsingh Sahebsingh Hazari                   ... Petitioner
        Versus
 The State of Maharashtra and others             ... Respondents
                                   ....
 Mr. V. B. Dhage, Advocate for petitioners
 Mr. S. N. Morampalle, AGP for respondent Nos. 1 to 3
 Mr. Shailesh P. Brahme, Advocate for respondent Nos. 4 to 6
 Mr. S. R. Kedar, Advocate for respondent Nos. 7 to 10

                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 25th JANUARY, 2021 PRONOUNCED ON : 30th JANUARY, 2021

PER COURT :-

. Both these writ petitions are interconnected, and

therefore, decided by this common order.

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For the sake of convenience, the parties and pleadings of

Writ Petition No.1455 of 2020, are referred to.

The Petitioners filed civil suit, being Special Civil Suit

No.39 of 2010 before the learned Civil Judge, Senior Division,

Majalgaon, for declaration that agricultural lands described in the

plaint are the personal properties of petitioner Nos. 1 and 2. Relief

of perpetual injunction, restraining respondent Nos. 4 to 7

(defendants) from obstructing the petitioners' possession over the

suit lands, is also prayed for. The petitioner in Writ Petition No.2093

of 2020 moved application Exh.167 for intervention/ impleadment

as defendant in the suit. The trial Court vide its order dated

27.09.2018 rejected application Exh.167. The said order is under

challenge in Writ Petition No.2093 of 2020.

The trial Court decreed the suit on 16.10.2018. The

defendants in the said suit (respondents No. 4 to 7) preferred

appeal, being Regular Civil Appeal No.79 of 2018 before the District

Court at Majalgaon. Respondents No. 4 to 7 - appellants impleaded

the petitioner in Writ Petition No.2093 of 2020 as party respondent

to the said appeal. The petitioners herein, therefore, moved

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application Exh.25 for dismissal of the appeal on the ground of

misjoinder of the petitioner in Writ Petition No.2093 of 2020, as

respondent to the appeal. The learned District Judge, vide his order

dated 19.12.2019, rejected application Exh.25. The said order is

challenged in Writ Petition No.1455 of 2020.

2. Shri Shailesh P. Brahme, learned Advocate for the

petitioners would submit that the trial Court had rightly rejected

application Exh.167. On its rejection, the applicant/petitioner in writ

petition No.2093 of 2020 did not challenge the said order until the

suit was finally decided i.e. 16.10.2018. The appellants in Regular

Civil Appeal No.79 of 2018 did not obtain appellate Court's

permission before impleading the applicant as party respondent to

the appeal. The order passed by the District Judge is illegal and

therefore, unsustainable in law. He would further submit that Order

XLI Rule 20 of the Code of Civil Procedure (CPC) has no application

in the given facts and circumstances of the case. When application

Exh.167 was rejected and immediately not taken exception to by

filing judicial proceedings, the same attained finality. Pending the

suit, by virtue of Section 105 CPC, any order made by a Court in

exercise of its original or appellate jurisdiction from which no appeal

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has been preferred or provided, any error, defect or irregularity in

such order, may be set forth as a ground of objection in the

memorandum of appeal. The same has not been done in the present

case. Learned Advocate placed reliance on the judgment of the

Supreme Court in the case of Satyadhyan Ghosal vs. Deorajin Debi

reported in 1960 AIR(SC) 941. Learned Advocate, ultimately, urged

for setting aside the impugned order in Writ Petition No.1455 of

2020 and dismissal of Writ Petition No.2093 of 2020.

Learned Advocate representing respondent Nos.4 to 7

(Writ Petition No.1455 of 2020) and learned Advocate for the

petitioner (Writ Petition No.2093 of 2020), would submit that the

petitioner Nos. 1 and 2 have played mischief. The petitioner (Writ

Petition No.2093 of 2020) is a necessary party to the suit. Appeal is

continuation of a suit. The appellate Court, therefore, rightly

rejected application Exh.25 moved by the petitioners. The trial Court

ought to have granted application Exh.167. Learned Advocates

ultimately urged for dismissal of Writ Petition No.1455 of 2020 and

allowing of Writ Petition No. 2093 of 2020.

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 3.               Order I Rule 10(2) of the CPC, reads thus:

"10. Suit in name of wrong plaintiff .-(1) .....

(2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

4. Rule 9 of Order I CPC reads that no suit shall be

defeated by reason of the mis-joinder or non-joinder of parties and

the Court may in every suit deal with the matter in controversy so far

as regards the rights and interests of the parties actually before it -

provided that nothing in this rule shall apply for nonjoinder of a

necessary party.

In view of terminology of Rule 9 above, the appellate

Court has rightly rejected the application Exh.25, although it has not

referred to provisions of Order I Rule 9 CPC.

5. Learned Advocate for the petitioners was right in

submitting that Order XLI Rule 20 has no application to the present

case. It empowers the appellate Court to add any person as a party

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respondent, who was a party to the suit in the Court from whose

decree the appeal is preferred, but who has not been made a party

to the appeal, is interested in the result of the appeal.

6. Appeal is continuation of a suit. Provisions of Order I

Rule 10 CPC, are therefore applicable to a suit pending in appeal.

7. I have perused the pleadings in the suit and

documentary evidence adduced therein. The evidence on record of

the suit does indicate that the petitioner No.3- Balaji Mandir Public

Trust, is a trust registered in the office of the Charity Commissioner.

The suit lands are shown to be the properties of Balaji Mandir Public

Trust. Petitioner Nos. 1 and 2 were its erstwhile trustees. They have

been removed from trusteeship, way back in 2009. The petitioner in

Writ Petition No.2093 of 2020 is one of the trustees of Balaji Mandir

Public Trust. The prayers in the suit would indicate that the

petitioner Nos. 1 and 2 have claimed exclusive title to the suit lands.

Thus, the prayer in the suit is prejudicial to the interest of petitioner

No.3 - Balaji Mandir Public Trust. Under these facts, petitioner Nos.

1 and 2 should not have made the trust, a plaintiff in the suit. It is

surprising as to how the trial Court was oblivious of this fact.

Respondent Nos. 4 to 7 (contesting defendants in the suit) are not

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the trustees. In-spite of there being voluminous evidence to suggest

the properties in the suit being the trust properties, the suit came to

be decreed (this is a prima-facie observation). When petitioner Nos.

1 and 2 claimed exclusive title and possession over the suit lands in

spite of those lands having been shown to be the trust properties in

the official record, the trustees of the said trust are entitled to

contest the claim made in the suit. The petitioner (Writ Petition

No.2093 of 2020), had therefore, rightly moved application Exh.167

for his impleadment in the suit. The trial Court found him to be not

necessary party. The findings of the trial Court in this regard, are

perverse one. It has been specifically pleaded in Writ Petition

No.2093 of 2020 that a copy of the order rejecting application

Exh.167 had not been supplied until the suit was finally decided.

Since the applicant/petitioner (Writ Petition No.2093 of 2020) was

not a party to the suit, he could not take recourse to Section 105

CPC and challenge the said order in appeal. He has no other remedy

than to prefer writ petition against the order rejecting his

application. It is true that the appellants in RCA No.79 of 2018

before impleading him as party respondent to the appeal, ought to

have obtained prior permission of the appellate Court. The said act

needs to be deprecated. The fact, however, remains that the

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applicant (Exh.167) / petitioner (Writ Petition No.2093/2020), is

necessary party to the suit. He has already been on record as a party

respondent in the appeal. The appellate Court, was therefore,

justified in dismissing application Exh.25. Since the order passed

below Exh.167 is unsustainable in law, the same needs to be set

aside, allowing Writ Petition No.2093 of 2020.

8. Both the writ petitions are therefore disposed of in terms

of the following order :

ORDER

(i) Writ Petition No.1455 of 2020 is dismissed.

(ii) Writ Petition No.2093 of 2020 is allowed in terms of

prayer clause "C".

(iii) Application Exh.167 in Special Civil Suit No.39 of

2010.

[ R. G. AVACHAT, J. ]

SMS

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