Bombay High Court
Baburao Bhimrao Patil And Ors vs Popat Tukaram Jadhav Decd Through ... on 8 March, 2022
Bench: Nitin W. Sambre
13. WP-4575-2021.doc
BDP-SPS-TAC
BHARAT
DASHARATH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PANDIT
Digitally signed
CIVIL APPELLATE JURISDICTION
by BHARAT
DASHARATH
PANDIT
Date:
2022.03.09
14:45:48 +0530
WRIT PETITION NO. 4575 OF 2021
BABURAO BHIMRAO PATIL AND ORS .... Petitioners.
V/s
POPAT TUKARAM JADHAV
SINCE DECEASED THROUGH
LEGAL HEIRS
1a. RAJENDRA POPAT JADHAV AND ORS ... Respondents.
----
Mr. Mahindra B. Deshmukh for the Petitioners.
Mr. Shashank Mangle i/b Mr. Balwant V. Salunkhe for the
Respondents.
----
CORAM: NITIN W. SAMBRE, J.
DATE: MARCH 08, 2022
P.C.:-
1] Petitioners/Defendants by this Petition are questioning the order
passed below Exhibit-548 whereby prayer for impleadment came to be
allowed pursuant to the provisions of Order-I Rule 10, sub-rule (2) of
the Civil Procedure Code.
2] It is the contention of Counsel for the Petitioners/Defendants
that the order impugned suffers from illegality, as similar prayer earlier
13. WP-4575-2021.doc
moved by the very Respondents/Plaintiffs vide Exhibit-522 pursuant to
the provisions of Order VI Rule 17 was rejected on 02/08/2019. He
would claim that the said order was never challenged and to by-pass
the said rejection, Respondents/Plaintiffs have invoked the provisions
of Order I Rule 10 that too in the absence of any challenge to the
alleged Sale Deed executed in favour of the ancestors of the proposed
Defendants by Defendant No.8. As such, it is claimed that the order
impugned is not sustainable. My attention is also invited to the
specific issue framed by the Court below in relation to non-joinder of
necessary parties.
3] Counsel for the Respondents/Plaintiffs would support the order
impugned. According to him, scheme under Order VI Rule 17 and the
one under Order I Rule 10, sub-rule (2) is altogether different. He
would claim that even if prayer under Order VI Rule 17 for
impleadment was rejected, still for proper adjudication of suit claim
Court below, having noticed that proposed Defendants are necessary
parties, was justified in granting the prayer for impleadment. In
addition, his contentions are, the suit in question is for partition and
separate possession. That being so, status of parties to the suit
13. WP-4575-2021.doc
becomes that of interest in common and therefore the
Petitioners/Defendants have no locus to question the order impugned.
As such, he has sought dismissal of the Petition. So as to substantiate
his contentions, he has drawn support from the judgment of the Apex
Court in the matter of Pankajbhai Rameshbhai Zalavadia vs. Jethabhai
Kalabhai Zalavadiya (Deceased) Through LRs & Ors. in civil Appeal
No.15549 of 2017 arising out of SLP ( C ) NO.31212 of 2014
particularly paras 4, 5 and 14 so as to canvass that scheme under
Order VI Rule 17 and Order I Rule 10 is on different legal status.
4] I have appreciated the said submissions.
5] Admittedly, the suit is for partition and separate possession. In
the said suit, Respondents/Plaintiffs have not questioned the Sale
Deed executed by Defendant No.8 in favour of ancestors of the
proposed Defendants. In the wake of rival pleadings, on 11/12/2013,
Trial Court has framed issue No.3 which reads as under:-
"Whether Defendant Nos. 8 to 12 prove that all
necessary parties are not joined to the suit?"
13. WP-4575-2021.doc
6] I am informed that the suit has travelled at an advance stage, as
after framing of issues, the witness of the Plaintiffs is under cross-
examination. It is to be noted that earlier prayer of
Respondents/Plaintiffs for carrying out amendment on the same line
was rejected vide order below Exhibit-522 on 02/08/2019. The said
rejection is based on the fact that aforesaid issue No.3 was already
framed and Respondents/Plaintiffs have failed in the test of due
diligence. The said order, of course, has attained finality as not being
questioned by the Respondents/Plaintiffs.
7] If we peruse the application that is granted by the Court while
passing the order impugned, it appears that pleadings in the
application Exhibit-548 so also of Exhibit-522 are on similar lines.
The Plaintiffs/Respondents have succeeded in creating illusory picture
before the Court below to achieve the object which they could not
achieve while their Application Exhibit-522 for amendment was
rejected. Furthermore, once the Sale Deed alleged to have been
executed by Defendant No.8 in favour of the predecessor of proposed
13. WP-4575-2021.doc
Defendants is not questioned in the suit, it cannot be said that such
Defendants are necessary parties to the suit.
8] In the aforesaid backdrop, Petition stands allowed. The order
impugned dated 25/09/2019 is hereby quashed and set aside.
Application-Exhibit-548 stands rejected.
( NITIN W. SAMBRE, J. )
