Bombay High Court
M/S Jagdale And Associates Prop ... vs Shri Baburao Madhukarrao Chavan ... on 31 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 190 OF 2023
M/s. Jagdale and Associates ..Petitioner.
Versus
Baburao Madhukarrao Chavan & Anr. ..Respondents
__________
Mr. Ashish Kamat, Sr. Advocate a/w. Ms. Megha Chandra i/b.
Uttam S. Rane for Petitioner.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 31 MARCH 2023
PC :
1. The Petitioners have challenged the order dated
02/10/2022 passed by 3rd Jt. Civil Judge, S.D., Solapur, below
Exhibits 30 and 32 in Special Civil Suit No.176 of 2016. By the
impugned order, learned Trial Judge has allowed the application
filed by the Plaintiffs for impleadment of third person to the suit
and for making amendment to the plaint under O.6, Rule 17 of the
C.P.C. The Petitioner is the original Defendant. The two
Respondents are the original Plaintiffs in the said suit. For the sake
of convenience, the parties are referred to by their original status
in the suit.
Gokhale
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2. Heard Shri. Ashish Kamat, learned Senior counsel for the
Petitioner.
3. The Plaintiffs had filed the said suit for specific
performance of the contract and for possession of the suit
properties. The contract in question was an M.O.U. dated
23/10/2012 whereby the Defendant was to develop the suit
property and was to give 5% share in the Assets and benefits to
each of the plaintiffs; which would be accrued after the
development activities.
4. The prayer was that the Defendant be ordered and
directed to transfer and handover the possession of plot-able area
of 2348.78 Sq.mtrs. out of the total area of the land described in
paragraph 1 of the plaint. The second prayer was for appointment
of the Commissioner, in case the Defendant failed to handover the
possession.
5. Learned counsel for the Petitioner-original Defendant
submitted that the M.O.U. was executed in the year 2012, the suit
was instituted in the year 2016 and thereafter an application for
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interim injunction was filed by the Plaintiff vide Exhibit-5 in the
said suit. It was decided against the Plaintiffs on 21/03/2018. In
that particular order, it was specifically observed that the Plaintiffs
did not have balance of convenience in their favour and the
Defendant could not be restrained from alienating the property.
After this order was passed, this application was filed by the
Plaintiffs on 22/06/2021 for impleadment of the purchasers who
had purchased the plots from the Defendant.
6. Learned counsel submitted that, having observed that
the Defendant could not be restrained from alienating the
property, learned Trial Judge could not have observed that the
subsequent purchasers were the necessary parties. He relied on the
observation of the Hon'ble Supreme Court in the case of Gurmit
Singh Bhatia Versus Kiran Kant Robinson and others1.
7. I have considered these submissions and I have perused
the impugned order. It must be noted that, as of today, the issues
are already framed. Learned Trial Judge has observed that, during
pendency of the suit, the Defendant has executed sale deeds with
1 (2020) 13 Supreme Court Cases 773
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the persons narrated in the application made by the Plaintiffs.
Therefore, to avoid further complication and to resolve the dispute
between the parties and to meet the ends of justice, it was
necessary to allow the Plaintiffs to make amendment in the plaint.
8. Learned counsel for the Petitioner has relied on the
observations made by the Hon'ble Supreme Court in the aforesaid
Judgment, wherein, two tests are laid down for adding the parties.
(1) There must be a right to some relief against
such party in respect of the controversies
involved in the proceedings;
(2) no effective decree can be passed in the
absence of such party.
Learned counsel relied on the first test that, there must
be a right to some relief against such party. He submitted that, if
the plaint is read as a whole and even if prayers are read as they
are, there is no relief sought against those parties and there is no
mention of any right of those parties which could be affected by the
suit and, therefore, the first test is not satisfied. He submitted that,
though the suit is styled as the suit for specific performance; in effect,
there can never be specific performance in the nature of prayers
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which are sought for. At the highest it can be described as a suit for
damages. He submitted that the subsequent purchasers were not
parties to the M.O.U. and, therefore, first test laid down by the
Hon'ble Supreme Court in the aforesaid Judgment bars
impleadment of such subsequent purchasers. Considering these
submissions, it is necessary to hear the Respondents. Learned
counsel for the Petitioner has made out a case for grant of ad-
interim relief.
9. Hence, the following order:
ORDER
(1) Issue notice to the Respondents, returnable
on 24/07/2023.
(2) Stand over to 24/07/2023.
(3) Till then, there shall be ad-interim relief in
terms of prayer clause (b).
(SARANG V. KOTWAL, J.)
