Bombay High Court

Dineshkumar Shankarlal Agrawal And ... vs Bhatu Shankar Patel And Others on 24 March, 2025

2025:BHC-AUG:8713
                                            (1)                      ao-7-2024.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
                           APPEAL FROM ORDER NO.7 OF 2024
                                       WITH
                          CIVIL APPLICATION NO.2963 OF 2024

               1.    Dineshkumar Shankarlal Agrawal
                     Age: 44 years; Occu.: Agril & Business

               2.    Rajeshkumar Shankarlal Agrawal
                     Age: 42 years; Occu.: Agril & Business

               3.    Rajesh Champalal Jain
                     Age: 42 years; Occu.: Agril & Business

               4.    Sau. Kiranbai Digambar Lunawat
                     Age: 56 years; Occu.: Agril & Business

                     All R/o: Vrundavan Nagar, Nandurbar,
                     Taluka and District Nandurbar

               5.    Pushpendrasing Govardhansing Raghuwanshi
                     Age: 51 years; Occu.: Business

               6.    Sau. Bhartiben Pushpendrasing Raghuwanshi
                     Age: 44 years; Occu.: Business
                     Both R/o: Pardeshipura, Nandurbar
                     Taluka and District Nandurbar

               7.    Sanjay Sureshchandra Agrawal
                     Age: 56 years; Occu.: Business

               8.    Manoj Sureshchandra Agrawal
                     Age: 53 years; Occu.: Business
                     Both R/o. Ghoda Mill, Near Hat Darwaja Nandurbar
                     Taluka and District Nandurbar             ..Appellants
                                                       (Orig. Defendant Nos.1 to 8)
                           Versus
               1.    Bhatu Shankar Patel,
                     Age: 54 years; Occ.: Agriculture,

               2.    Smt. Kamalben Shankar Patel,
                     Age: 734 years, Occ.: Household & Agriculture

               3.    Sau. Vimalben Uddavbhai Patel,
                     Age: 44 years, Occ.: Household & Agriculture
                               (2)                       ao-7-2024.odt




4.    Sau. Aashaben Dhanraj Patel,
      Age: 52 years: Occ.: Household & Agriculture

      All R/o. Patonda,
      Taluka and District Nandurbar

5.   I.B.P. Company Limited
     R/o I.B.P. House,
     34/A, Nirmalchandra Road, Calcutta              ..Respondents
                                   (Respondent No.1 to 4 Original
                                   Plaintiffs, Respondent No.5 is
                                   original Defendant No.9)
                                 ...
Mr. R. R. Sancheti, Advocate for Appellants.
Mr. M. M. Bhokrikar, Advocate for Respondents.
                                 ...
                         CORAM : S. G. CHAPALGAONKAR, J.
                         DATED : 24th MARCH, 2025.
JUDGMENT:

1. Admit. Heard finally at the stage of admission by consent of

parties.

2. The appellants/original defendant nos.1 to 8 impugn order

dated 20.01.2024 passed by Principal District Judge, Nandurbar in

Regular Civil Appeal No.18/2015, thereby setting aside judgment

and decree dated 17.11.2011 passed by Civil Judge, Senior

Division, Nandurbar in Special Civil Suit No.17/2001 and

remanded suit for trial under Order XLI Rule 23-A of the Code of

Civil Procedure (for short 'CPC'). (Hereinafter, parties are referred

to by their original status for the sake of convenience and brevity).

3. The respondent nos.1 to 4/plaintiffs filed suit for declaration,

specific performance of agreement dated 28.06.1989 executed by (3) ao-7-2024.odt

defendant nos.1 to 4 in favour of plaintiffs and one Ushaben

(divorced wife of plaintiff no.1). The defendants refuted plaintiffs

claim mainly on ground that, suit is bad for non-joinder of

necessary party, so also barred by limitation.

4. The Trial Court after evaluation of evidence, dismissed suit

accepting case of defendants that Ushaben being party to

agreement was necessary party, but not added as party in suit.

The aggrieved plaintiffs filed Appeal before District Judge,

Nandurbar. The learned District Judge after considering

submissions advanced, partly allowed Appeal and remanded

matter to Trial Court invoking Order XLI Rule 23-A of CPC. The

appellants/original plaintiffs are directed to add Ushaben as

defendant in suit by making appropriate application before Trial

Court, who is directed to decide suit afresh on the basis of evidence

already on record or with further additional evidence as laid by

parties. In this background, present Appeal against Order is filed

assailing order of remand.

5. Mr. Sancheti, learned Advocate appearing for appellants

vehemently submits that appellants/original defendant nos.1 to 8

had raised specific objection in written statement as to non-joinder

of Ushaben Patel as party to suit. Consequently, issue was framed

by Trial Court. The plaintiffs failed to add Ushaben as party

during pendency of suit. Eventually, suit came to be dismissed as (4) ao-7-2024.odt

not maintainable for want of necessary party. In this background,

Appellate Court could not have permitted plaintiffs to fill up lacuna

and remanded matter for re-trial by granting opportunity to add

Ushaben as defendant. Mr. Sancheti would further submit that

during pendency of Appeal, Ushaben had filed an application

seeking her impleadment as party to suit. The plaintiffs had given

their no objection. However, said application was contested by

appellants/defendants. Eventually, Appellate Court rejected said

application vide order dated 10.07.2023. In that view of matter,

there was no scope for Appellate Court to invoke jurisdiction under

Order I Rule 10(2) of CPC and permit plaintiffs to add Ushaben as

party. He submits that order passed below Exhibits 30 and 36,

dated 10.07.2023, operates as res judicata within the same

proceeding, and Appellate Court could not have passed converse

order permitting impleadment of Ushaben, ignoring order dated

10.07.2023. In support of such contentions, Mr. Sancheti relies

upon observations of Supreme Court of India in case of S.

Ramchandra Rao Vs. S. Nagabhushana Rao and Ors. (Civil

Appeal Nos.7691-7694 of 2022 decided on 19.10.2022). Similarly,

he relies upon judgment of this Court in case of Purushottam

Shivdas Chaudhari Vs. Narayan Shivdas Chaudhari1.

6. Per contra, Mr. Bhokrikar, learned Advocate appearing for

respondents supports impugned order contending that all relevant 1 2017 (2) Mh.L.J. 694.

(5) ao-7-2024.odt

aspects have been considered by Appellate Court and discretion as

available under Order I Rule 10(2) of CPC has been judiciously

exercised so as to adjudicate dispute between parties.

7. Having considered submissions advanced, two important

aspects of matter arises for consideration before this Court, which

are as follows:

(i) Whether Appellate Court could have exercised discretion

under Order I Rule 10(2) of CPC, thereby directing appellants to

add Ushaben Bhatu Patel as defendant?

(ii) Whether orders passed below Exhibits 30 and 36, whereby

Appellate Court had rejected earlier application made by Ushaben

Bhatu Patel seeking her impleadment in suit would operate as res

judicata within the proceeding?

8. So far as first aspect as to exercise of discretion under Order

I Rule 10(2) of CPC is concerned, it would be apposite to refer

relevant provision of Order I Rule 10(2) of CPC:

"10. Suit in name of wrong plaintiff:- Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without (6) ao-7-2024.odt

the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended--

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

9. The Appellate Court has relied upon observations of Supreme

Court of India in case of Mumbai International Airport Pvt.

Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and

Ors.2, particularly paragraph nos.14 and 22, which reads thus:

"14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party:

(a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 2 AIR 2010 SC 3109.

(7) ao-7-2024.odt

22. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties.

The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice"

10. In light of aforesaid observations of Supreme Court of India,

it is evident that Court is empowered to direct addition or deletion

of any party at any stage of proceeding. The discretion available to

Court has to be exercised according to reason and fair play guided

by law and it must not be arbitrary, vague and fanciful, but legal

and regular. The addition of such party shall always be subject to

provision of Indian Limitation Act. It is not out of place to mention

here that judicial discretion available to Court has to be used

considering overall conspectus of matter. The discretion must be

aimed to achieve ends of substantial justice. The care has to be

taken that if any right is accrued in favour of party on account of

lapses or negligence of either parties, benefit accrued shall not be

taken away.

(8) ao-7-2024.odt

11. In present case, Ushaben is one of the prospective purchaser

alongwith plaintiffs in subject agreement to sale. In suit,

explanation is tendered for not impleading her as party that she

has divorced with plaintiff no.1-Bhatu and her rights are already

merged with plaintiff no.1. With such bonafide belief, her non-

impleadment is justified in plaint. Apparently, omission to add

Ushaben was under conception that right to seek specific

performance would not be eclipsed by her absence in peculiar facts

of the case. However, Trial Court as well as Appellate Court

arrived at conclusion that presence of Ushaben is necessary to

finally adjudicate real matter in dispute between parties. In that

view of matter, exercise of discretion under Order I Rule 10(2) of

CPC is held to be essential and that has been judiciously exercised

by Appellate Court.

12. It is true that, Trial Court after recording findings against all

issues in favour of plaintiffs, dismissed suit merely for the reasons

of non-impleadment of Ushaben as party. Although there was an

objection in written statement and an eventual issue, the plaintiffs,

under a misconception in peculiar facts of the case, did not implead

her as party. The Appellate Court, therefore, felt it necessary to

implead her as party and issue such directions at appellate stage.

13. So far as contentions that in view of orders passed below

Exhibits 30 and 36 Appellate Court could not have ordered (9) ao-7-2024.odt

impleadment of Ushabai as party, it can be observed that orders

below Exhibits 30 and 36 had been passed on application moved by

Ushaben seeking her impleadment as party during pendency of

Appeal. The Court decided that application from perspective of

Ushaben observing that she had neither filed an independent

proceeding for specific performance based on the subject agreement

to sale nor had she sought impleadment before Trial Court in this

suit. It can be observed that order on her application is procedural

one, passed considering stage of the proceeding and individual

right of Ushaben to invoke procedural clause under Code of Civil

Procedure before a decision is made. It does not relate to the

substantive rights of parties.

14. Mr. Sancheti relying upon observations of Supreme Court of

India in case of S. Ramchandra Rao (supra) submits that

doctrine of res judicata attracted not only in separate subsequent

proceeding, but also at subsequent stage of same proceeding.

Earlier decision even erroneous, remains binding on parties to

same litigation concerning the same issue. There cannot be

dispute to the preposition of law. However, in facts of presence

case, Appellate Court while finally deciding Appeal thought it fit to

direct impleadment of Ushaben as defendant so that controversy

between parties can be resolved in peculiar facts and

circumstances. The Appellate Court found that non-impleadment (10) ao-7-2024.odt

of Ushaben by plaintiffs at the time of institution of suit or during

the trial was bonafide mistake. Further, because of matrimonial

discord i.e. divorce between plaintiff no.1 and Ushaben, she was

not joined by plaintiffs in prosecuting suit for specific performance

of agreement.

15. In case of Arjun Singh Vs. Mohindra Kumar and

Others3, two prepositions as to the application of res judicata have

been generally approved:

(i) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding.

(ii) that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against.

It is further clarified that,

"whether principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable."

16. Applying aforesaid principles of law in facts of present case,

it can be observed that issue as to the impleadment of Ushaben has

been previously decided on her application filed at Exhibits 30 and

36 at interlocutory stage. The whole conspectus of matter was not

considered nor it was expected to be considered while deciding

3 AIR 1964 SC 993.

(11) ao-7-2024.odt

entitlement of Ushaben to get herself impleaded as party in

proceeding at appellate stage. However, while deciding appeal

when Appellate Court arrived at conclusion that impleadment of

Ushaben was necessary, looking to the nature of dispute, Appellate

Court exercised jurisdiction vested under Order I Rule 10(2) of