Bombay High Court
Smt. Poonam W/O Vipin Kapoor vs M/S Usha Engineering Thr. ... on 4 October, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:14571
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 5352 OF 2023
PETITIONER: : Smt. Poonam w/o Vipin Kapoor
Aged about 61 years, Occ. Business,
R/o Om Villa, Sneha Nagar, Gajanan
Mandir Road, Saibaba Ward,
Chandrapur - 442401
Vs.
RESPONDENTS : 1. M/s Usha Engineering
Through its Proprietor Shri
Dattatraya Santoshrao Balapure,
Aged about 63 years, R/o Sadachar
Society, Dattawadi, Amravati Road,
Nagpur - 23
2. Maharashtra Industrial Development
Corporation, H.O. Mahakli Gufa
Marg, Andheri (East), Mumbai -
400093 through its Chief Officer
3. The Regional Managar,
Maharashtra Industrial Development
Corporation, Udyog Bhavan, Civil
Lines, Nagpur
Mr. A.S. Sonare, Advocate for petitioner
Mr. C. F. Bhagwani, Advocate for Respondent No.1
Mr. A.D. Sonak, Advocate for Respondent Nos.2 and 3
CORAM: AVINASH G. GHAROTE, J.
DATED : 4th OCTOBER, 2023
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ORAL JUDGMENT :
Rule. Rule is made returnable forthwith. Heard
finally with the consent of learned counsel appearing for rival
parties.
2. The petition questions the order dated
07/06/2023, passed by the learned trial Court, whereby the
application filed by the petitioner under Order 1 Rule 10 of
the Code of Civil Procedure for adding her as a defendant in
Regular Civil Suit No.1201/2014 filed by the present
respondent No.1 against the respondent Nos. 2 and 3 has
been rejected on the ground that the petitioner is not a
proper and necessary party.
3. Mr. Sonare, learned counsel for the petitioner
submits, that the suit has been filed by respondent No.1 in
respect of half portion of plot P-120 at MIDC Industrial Area
at Hingna and a relief has been claimed therein of mandatory
injunction of directing the respondent Nos.2 and 3 to allot
the half portion of plot No. P-120 to the respondent No.1 /
plaintiff. It is contended, that this very half portion of P - 120
was put to auction by the respondent No.3 in the year 2014
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and the petitioner being the highest bidder the part
consideration was deposited by the petitioner with the
respondent No.3 and therefore, the petitioner has a right to
be impleaded in the suit as the very property which has been
acquired by the petitioner on account of the auction by the
respondent No.3 is subject matter of R.C.S. No.1201/2014.
He therefore, submits, that the petitioner is not only proper,
but necessary party to the suit in question and the principle
of dominus litus cannot be one which can come in the way of
the petitioner from being added as party defendant to the
suit. Mr. Sonak, learned counsel for the respondent Nos.2
and 3 supports the learned counsel for the petitioner.
4. Mr. Bhagwani, learned counsel for the respondent
No.1 opposes the petition contending that the petitioner has
no locus to be impleaded in the suit filed by the respondent
No.1. He, however, does not dispute that the property which
was put to auction by respondent No.3 and which has been
allotted to the petitioner being the highest bidder and the
property in the suit is the same. It is also contended, that the
evidence is already completed in R.C.S. 1201/2014 and
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therefore, clock should not be set back.
5. On a query made by the Court, Mr. Sonak, learned
counsel for the respondent Nos. 2 and 3 makes a statement
that the pendency of R.C.S. No.1201/2014 was not disclosed
to the petitioner and it was only so done in the year 2022
(page 11) when by the communication dated 01/07/2022
the petitioner was informed regarding pendency of the
aforesaid suit. This would clearly indicate that knowledge
regarding of pendency of the suit was acquired by the
petitioner only upon receipt of the aforesaid communication,
consequent to which application is filed.
6. Since the petitioner has been the highest bidder in
the auction of the aforesaid property, she would definitely be
a person concerned with the fate of the litigation and would
be entitled to defend the same, as any result in the suit,
would equally have an impact upon the entitlement of the
petitioner to the property in question. Though reliance has
been placed on the judgment in the case of Sudhamayee
Pattanik and others Vs. Bibhu Prasad Sahoo and others in
Civil Appeal No. 6370/2022, decided by the Hon'ble Apex
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Court on 16/09/2022, by Mr. Bhagwani, learned counsel for
the petitioner, that was a case where the persons who had
sought to be impleaded were subsequent purchasers during
the pendency of suit, on account of which the impleadment
was denied. The fact position in the present case is clearly
different as the petitioner has acquired right in the property
by being the highest bidder in the auction, as against which,
the respondent No.1 did not have any legal right to any
allotment of the same property, considering which, the
impugned order is hereby quashed and set aside and the
application at Exh.42 is allowed. The respondent No.1 shall
carry out addition within a period of one week from today.
The petitioner shall appear before learned trial Court on 11 th
October, 2023 through counsel without any further notice
being required to be issued to the petitioner. The petition is
allowed in above terms. No costs.
JUDGE
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 06/10/2023 14:25:06
