Bombay High Court
Mayur Developers Through Partner ... vs Ashvini Milind Shah And Ors on 5 October, 2023
Bench: Amit Borkar
2023:BHC-AS:29219
12-wp13944-2018.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13944 OF 2018
Mayur Developers, Sangli
Through Its Partner Sanjay Shivaji
Karande ... Petitioner
V/s.
Ashvini Milind Shah ... Respondent
WITH
CIVIL APPLICATION NO.1387 OF 2019
IN
WRIT PETITION NO.13944 OF 2018
Mayur Developers, Sangli
Through Its Partner Sanjay Shivaji
Karande ... Applicant
In the matter between
Mayur Developers, Sangli
Through Its Partner Sanjay Shivaji
Karande ... Applicant
V/s.
Ashvini Milind Shah & Ors. ... Respondents
Mr. Kuldeep U. Nikam with Mr. Om Latpate for the
petitioner/applicant.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 5, 2023
P.C.:
1. The petitioner is challenging order passed by the Trial Court
allowing the application of third party under Order 1 Rule 10 of
12-wp13944-2018.doc
the Civil Procedure Code, 1908 to add him as defendant in a suit
for specific performance on the ground that the proposed
defendant is subsequent purchaser of the suit property.
2. The petitioner filed Special Civil Suit No.40 of 2012 for
specific performance of agreement to sell dated 8 April 2010 and
declaration that sale deed dated 5 October 2009 executed on
behalf on defendant No.1 through defendant No.10 in favour of
defendant No.9 be declared as false, fabricated and unlawful.
3. Moreover, subsequent sale deed dated 4 May 2011 executed
by defendant No.1 in favour of defendant No.4 be declared as not
binding on the share of the plaintiff.
4. In the said suit, respondent No.1 filed an application under
Order 1 Rule 10 of the Civil Procedure Code, 1908, claiming her
rights through one Vastupal Shah who in turn purchased the suit
property from the husband of defendant No.1.
5. The Trial Court allowed the application on the ground that
for deciding the suit effectively and completely and to avoid
multiplicity of proceeding respondent No.1 deserves to be added
as a party.
6. This Court on 14 March 2023 issued notice to respondent
No.1. Office remark dated 6 September 2023 shows that
respondent No.1 is duly served. Despite service, respondent No.1
has failed to appear either personally or through advocate. Hence,
the petitioner is being decided on merits.
7. Learned advocate for the petitioner relying on the judgment
12-wp13944-2018.doc
of the Apex Court in the case of Gurmit Singh Bhatia vs.
Kiran Kant Robinson and Others reported in (2020) 13 SCC
773, submitted that the position of law in relation to application
filed by the plaintiff in a suit for specific performance to add
subsequent purchaser as a party to the suit is different from the
position in relation to the application filed by subsequent
purchaser to add himself as party to the suit for specific
performance. It is held that the plaintiff being dominus litis cannot
be forced to add parties against whom, he does not want to fight.
If he does so, in that case it will be at the risk of plaintiff.
8. Considering the ratio laid down by the Apex Court in the
aforesaid case, the petition can be allowed in following terms:
a) The impugned order passed by 5 Joint Civil Judge
Senior Division, Sangli in Special Civil Suit No.40 of 2012
below Exhibit-101 dated 4 July 2018 is quashed and set
aside.
b) The application below Exhibit-101 in Special Civil Suit
No.40 of 2012 is rejected.
9. It is made clear that deletion of Ashvini Milind Shah as party
defendant to the suit shall be at the risk of the plaintiff.
(AMIT BORKAR, J.)
