Bombay High Court
Prahlad S/O. Fakira Kaldate And ... vs Sanjay S/O. Manohar Jumle on 19 October, 2022
Bench: Avinash G. Gharote
(1) 5wp5844.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5844 OF 2022
Pralhad Fakira Kaldate and anr_ Vs. ___Sanjay Manohar Jumle
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. H.R.Gadhia, Advocate for petitioner
CORAM : AVINASH G. GHAROTE, J.
DATE : 19/10/2022
1] Heard Mr. Gadhia, learned counsel for the
petitioner.
2] The petition challenges the order dated
22.2.2022, whereby the application for addition of party
filed by the petitioner/original plaintiff at the appellate
stage has been rejected by the learned lower Court on the
ground that throughout the petitioner/plaintiff was aware
of the plea that the suit was bad for non-joinder of
necessary parties, inspite of which the plaintiff/petitioner
did not take any steps and such an application at the
appellate stage after delay of more than 8 years would not
be maintainable.
3] Mr. Gadhia, learned counsel for the petitioner
submits that since the party to be added is a necessary
party, the same can be done at any point of time and at any
stage and since the appeal is continuation of the suit, the
same does not deter the appellate Court from granting the
(2) 5wp5844.22
application. He further submits that the question of delay
would not arise, as when the petitioner realized that the
person to be added was a necessary party, the application
was made on 19.6.2017. It is therefore submitted that the
impugned order is liable to be quashed and set aside and
the application needs to be allowed.
4] A perusal of the judgment dated 30.3.2011,
which is impugned in RCA No. 43/2011 indicates that a
specific plea was raised in the written statement that the
suit was bad for non-joinder of necessary parties. The suit is
of the year 2009. Issues were framed in the suit and issue
no. 4 was specific to this effect as to whether the suit is bad
for non-joinder of necessary party. It is therefore apparent
that right from the stage of framing of the issue, the
plaintiff was aware regarding the position about non-
joinder of necessary party, in spite of which the plaintiff did
not take any step and had gone ahead with the trial, which
has resulted in the dismissal of the suit by the aforesaid
issue having been answered in affirmative under the
judgment dated 30.3.2011. In the appeal which was filed in
2011, no steps were taken for moving an application for
addition of party inspite of petitioner/plaintiff being
specifically aware of the answer to issue no 4. It is for the
first time that by the application dated 19.6.2017, the
person who was to be a proper and necessary party is
sought to be added.
(3) 5wp5844.22
5] There is absolutely nothing on record to
indicate as to why such an application was not filed from
2011 to 2017. When the suit was for declaration regarding
a right of way, the cause of action had already arisen
against the party to be added in the year 2009 itself and
therefore, considering the passage of time from 2009 to
2017 and the statute of limitation, it is now no longer
permissible for the said application to be allowed. This
position has been considered by the learned appellate
Court in the correct perspective, in view of which I do not
see any reason to interfere in the impugned order. The
petition is dismissed. No costs.
6] The appeal shall be decided on its own merits.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:19.10.2022 17:10
