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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION NO. 105 OF 2006
1. Smt. Sushil Kaur W/o Sukhbirsingh
Chhatwal, Aged : 56 years, Occ :
Household, R/o Raj Tara Bungalow,
Osmanpura, Aurangabad.
2. Gurbirsingh S/o Sukhbirsingh
Chhatwal, Age : 40 years, Occ :
Business, R/o As above.
3.
Sathirsingh S/o Sukhbirsingh
Chhatwal, Age : 38 years, Occ :
Business, R/o As above.
..PETITIONERS
-VERSUS-
1. M/s Aurangabad Ginning & Pressing
Factory, Jaffar Gate, Aurangabad,
Through its G.P.A. Kantilal S/o
Hiralal Mithawala, Age : 70 years,
Occ : Service, R/o Supari Hanuman
Road, Aurangabad.
2. Municipal Corporation, Aurangabad
through its Commissioner.
..RESPONDENTS
...
Shri K.C. Sant, Advocate for applicants.
ٍShri P.S. Sonpethkar, advocate for respondent
no.1
...
CORAM: S.S. SHINDE,J.
Reserved on : 23rd August, 2011
Pronounced on : 22nd September, 2011
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: JUDGMENT:
1. This Civil Revision Application is filed
aggrieved by the order passed on application
below Exhibit-10 in Misc. Civil Appeal no. 177
of 2006 dated 1st December, 2006 by the Adhoc
Additional District Judge-3, Aurangabad.
2. The
revision applicants herein are the
original plaintiffs, who have filed the suit
against the respondent no.2 praying for
perpetual injunction from demolishing the
construction on the suit land. In the said
suit, the revision applicants filed an
application for temporary injunction. However,
same was rejected.
Being aggrieved with the same, the
applicants filed Misc. Civil Appeal no. 177 of
2006 before the District Court along with
application Exhibit-5 for temporary
injunction.
The respondent no.1 herein thereafter
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filed application Under Order 1 Rule 10(2) of
Code of Civil Procedure for addition of
parties in Misc. Civil Appeal no. 177 of 2006.
The avernments in the said application filed
by the respondent no.1 herein are as under :-
” 1. That, the applicant being owner
and possessor of the property and
ig portion of Survey No. 57, having
Municipal No.4-18-47/1, C.T.S. No.
13162 and 13163, situated at Jafar
Gate, Aurangabad. They filed the suitbearing R.C.S. No. 218/1972 for
possession of a room admeasuring 10′
X 10′ and for perpetual injunction
for the rest of portion against (1)Nutanbai, (2) Ravelsingh, (3)
Pratpsingh and (4) Mir Maqsood AliKhan. After hearing the suit on
merit, it came to be decreed by the
Hon’ble 2nd Joint Civil Judge, Junior
Division, at Aurangabad, by itsJudgment and Decree dated 30.9.1975.
The defendnats challenged said decree
by filing R.C.A. No. 195/1975 in the
Hon’ble District Court, Aurangabad,
and said appeal came to be allowed on
25.10.1978. Against the said decree
of Appellate Court, the present
applicant preferred IInd Appeal No.
189/1979 in the Hon’ble High Court
and said appeal came to be allowed on
16.12.1991, but, due to interpolation
in the said judgment in High Court,
the applicant filed C.A. No. 415/2003
for correction of Judgment and
deletion of interpolation. In said
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C.A. the husband of the plaintiff No.
1 Sukhbirsingh, who purchased said
property during pendency of the suit
was also unpleaded as party and after
hearing him, C.A. No. 415/2003 came
to be allowed on 21.09.2004.
Sukhbirsingh unsuccessfully
challenged the said order by filing
S.L.P. No. 21339/2004 in Hon’ble
Supreme Court of India.
2. That, the applicant filed
Reuglar Darkhast No. 104/1994, for
execution of decree passed in R.C.S.
No. 218/1972 and confirmed by Hon’ble
High Court. The applicant came to
know that the husband of present
plaintiff no.1 is intending to start
construction on suit property and
therefore, he filed application for
temporary injunction restraining
Sukhbirsingh and others and
defendants from changing the nature
of suit property or alienating the
said property or creating third party
interest on 6.7.2005. The Hon’ble 5th
Joint Civil Judge, Junior Division,
Aurangabad, after hearing pleased to
allow the application on 22.8.2005.
During the pendency of said
application status-quo order was
passed on 8.7.2005. In spite of
injunction order, Sukhbirsingh and
after his demise the present
plaintiffs continued the construction
work and therefore, the applicant
filed an application U/o 39 Rule 2-A
of Civil Procedure Code, which is
pending.
3. As such, the construction work
of the plaintiffs is during
enforcement of injunction order
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passed by the Court at the instance
of the defendants as such, the
applicant is interested party being
title holder of the suit property.
The plaintiffs have hided all above
referred material facts from the
Hon’ble 2nd Joint Civil Judge, Senior
Division, Aurangabad, and tried to
obtain equitable relief of temporary
and perpetual injunction by
misguiding the Hon’ble Court. When,
the applicant came to know about
filing of the said suit, the
applicant also filed application for
adding him as party in R.C.S. No.
870/2006 and the said application is
for consideration before the said
Court.
4. However, the present appellant/
original plaintiff filed appeal in
this Hon’ble Court and thereby
challenging the order of 2nd Joint
Civil Judge, Senior Division,
Aurangabad, issuing show cause notice
and not granting interim relief. The
said appeal is also fixed for final
hearing in this Hon’ble Court. As
such, the applicant being title
holder and interested party in the
suit and the applicant wanted to
protect the illegal construction made
by her by violating the order of
injunction and that is also on the
property of the applicant. As such,
the applicant may kindly be added as
party to this appeal. The applicant
is interested party in the present
appeal.
HENCE, IT IS PRAYED THAT :
This application may kindly be
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allowed and the applicant may be
added as respondent in the present
appeal and oblige.”
3. The said application filed by the
respondent no.1 herein was allowed by Adhoc
Additional District Judge-3, Aurangabad
thereby directing the revision applicants
herein, to add respondent no.1 as defendant in
appeal
within three days from the date of
order. Hence, this Civil Revision Application.
4. It is the case of the revision applicants
that late Sukhbirsingh Tarasingh Chatwal, the
husband of revision applicant no.1 and father
of applicant nos. 2 and 3, was the owner and
possessor of property bearing CTS no. 13163
admeasuring 1411.5 Sq. Meters (part of Survey
no. 56) situated at Bahadurpura, Jalna Road,
Aurangabad. Late Sukhbirsingh was in
possession of the property since 1971. N.A.
permission was granted by the Collector on
18th September, 1992. Since, 1979, there was
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an entry of late Sukhbirsingh in the P.R.
card. In 1992, late Sukhbirsingh also
constructed a compound wall for protection of
the suit property. He submitted a plan for
construction permission. However, the
respondent no.2 herein neither granted
permission nor rejected the permission,
under
therefore, in view of the deeming provision
the Maharashtra Regional and Town
Planning Act, there is a deemed permission,
and therefore, the construction of building as
per the plan was started. Sukhbirsingh died on
15.04.2005 and the names of the present
applicants have been recorded as owners of the
property being legal heirs of late
Sukhbirsingh. In the meanwhile, the respondent
no.2 sanctioned the plan and granted
permission to construct the building as per
the plan by its order dated 23rd June, 2005.
After the death of late Sukhbirsingh, the
names of the revision applicants are recorded
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in the city survey record. It is the case of
the applicants that some ill-motivated people
have made complaint to the respondent no.2
stating that this construction is illegal and
it be demolished.
The respondent no.2 thereafter issued the
notice ig to the revision
applicants replied the said notice and pointed
applicants. The
out that they have not committed any illegal
act nor they have violated construction
permission. It is further submitted that the
respondent no.2 by ignoring the permission
granted by its own authority is now bent upon
to demolish the construction at the behest of
some ill-motivated persons. Therefore, the
applicants herein filed the Civil Suit bearing
Regular Civil Suit No. 870 of 2006 in the
Court of Civil Judge, Senior Division,
Aurangabad. It is submitted that application
for temporary injunction was also filed.
However, same came to be rejected by the Civil
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Judge, Senior Division, Aurangabad. Therefore,
the applicants filed Misc. Civil Appeal before
the District Judge, Aurangabad. The
application for temporary injunction was also
filed. It is the case of the applicants that
the respondent no.1 without there being any
concern with the dispute in the suit, made
application on flimsy grounds and prayed for
adding it as party respondent in the appeal.
In fact, the respondent no.1 has no concern
with the property in question.
The say was filed by the applicants to the
application filed by the respondent no.1 for
adding him as party stating therein that such
application is not maintainable. The
plaintiffs themselves are the masters of their
suit and they can not be compelled to add any
party to the litigation. It is submitted that
the applicants have not claimed any relief
against the respondent no.1 and the applicants
carrying out the construction as per the plan
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submitted and sanction granted by the
respondent no.2 herein. It is further the case
of the applicants that when there is no relief
prayed against the respondent no.1, directing
the applicants to add the respondent no.1 as
party in the appeal itself is abuse of process
of law and further it would add to
complications. It is submitted that no person
can be forced to litigate against the person
who is not concerned with the subject matter
of the suit. It is further submitted that the
respondent no.1 is neither to gain nor to
loose in the litigation pending between the
applicants and the respondent no.2. Therefore,
for all these reasons, the impugned order
allowing application of the respondent no.1
and directing the revision applicants to add
him as party defendant in the suit, ought not
to have been passed by the Appellate Court.
5. The learned counsel appearing for the
revision applicants submits that before filing
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of suit bearing Regular Civil Suit no. 218 of
1997, the property of the respondents was sold
to one Narsing Kandi by registered sale deed.
However, when the respondent no.1 firm moved
Execution Petition no. 104 of 1994, said Kandi
has also moved Execution Petition no. 166 of
1993 pursuant to the alleged Sale Deed. Thus,
the respondent no.1 has no concern with the
said property in suit. It is submitted that
the Civil Suit bearing no. 218 of 1972 was
filed by respondents for possession of two
huts admeasuring 10 feet X 10 feet abutting to
Jalna Road in Survey no. 57 and for injunction
not to disturb the possession over the suit
land. The respondents have no concern with the
property bearing CTS no. 13163. By suppressing
material facts and by misrepresentation the
suit came to be filed only with an intention
to grab the property when in fact they have no
concern whatsoever with the property owned by
the applicants. It is submitted that the
property mentioned in the prayer clause is
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totally different than the property belonging
to the applicants. Further, in the entire suit
CTS number is not mentioned though CTS number
is given in the year 1971. It is submitted
that the said suit was decreed on the basis of
a Map Exh. 118, which clearly shows the
property is in Dawoodpura i.e. towards
southern
side of Jalna road,
property of the applicants is on northern side
whereas the
of Jalna Road. It is submitted that, the
defendants preferred appeal. In the Second
Appeal, the name of Nutanbai from whom the
suit property was purchased, was deleted. It
is further submitted that it is pertinent to
note that said Sukhbirsingh was never party in
the entire suit proceeding, i.e. Regular Civil
Suit no. 218 of 1972, Regular Civil Appeal no.
195 of 1978, Second Appeal no. 189 of 1979 and
Civil Application no. 415 of 2003. The
judgment delivered in suit is a Judgment in
personum and therefore, since late
Sukhbirsingh was not a party to it, it is not
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binding upon the applicants.
It is further submitted that as per
the record from Registrar of Firms, the firm
Aurangabad Ginning & Pressing Factory,
Aurangabad was dissolved way back in the year
1963 itself and more specifically on 31st
favour
March, 1963. The alleged power of attorney in
of Kantilal Mithawala given by one
Minichor Chinoy is false and wrong. Re-
delegation of power that too, when the firm
itself is not in existence is not recognized
by law. It is further submitted that at the
time of filing of suit, the width of Jalna
road was 20 feet, whereas now the width of
road is 132 feet. Even now the property of the
applicants is 40 feet away from Jalna Road. It
is further submitted that the area of suit
property shown in the plaint is 15000 feet,
whereas, the area shown below Exh. 118 comes
to be 14000 feet. The area of CTS No. 13162 is
10800 feet, thus, total comes to 25800 feet.
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However, the decree is only to the extent of
14000 feet. On this ground also the property
in Regular Civil Suit no. 218 of 1972 and the
property in possession of the applicants does
not match anywhere.
It is further submitted that in the
Judgment of Mantralaya in proceedings bearing
No. LAND/3904/782/CR123/L.1/CR117(12)/2004/A &
R, it is clearly held that the property is
different than suit property bearing Survey
no. 57. It is also held that Kantilal
Mithawala does not have valid power of
attorney. This judgment was given in view of
the judgment passed by this Court. It is
submitted that there is a report of Bailiff in
the Execution Proceedings at Exhibit-50 that
the property mentioned in prayer clause of
suit No. 218 of 1972 is not identifiable. It
is further mentioned that the plot no.
4-18-47/1 i.e. the property of the applicants
is on west side of property mentioned in civil
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suit no. 218 of 1972 and it is not concerned
with the property involved in present
proceeding. In no any proceeding including he
Execution Petition, the respondent no.1 has
ever sought that they have lost possession.
Thus, the respondent no.1 is not necessary
party in the proceeding filed by the
applicants and hence, the respondent no.1 has
no locus standi.
It is further submitted that the Municipal
Corporation has filed affidavit in Writ
Petition no. 3628 of 2006. In the said
affidavit, it is clearly stated by the
Municipal Corporation that, the Corporation
has granted construction permission by duly
considering the ownership of the applicants.
It is further submitted that, the respondent
no.1 had taken objection and after considering
that also, it was found that the applicants
are the owners. Hence, the permission granted
by the Corporation is by following due process
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of law. It is submitted that against the order
of Mantralaya, a Writ Petition is filed by
respondent no.1 and the same is pending and
also there is no stay by this Court.
Therefore, relying upon the avernments made in
the Civil Revision Application, grounds raised
therein, Annexures to the said Revision
Application and the written notes of arguments
filed by the applicants, the learned Counsel
appearing for the revision applicants would
submit that this Revision Application deserves
to be allowed.
6. On the other hand, the learned counsel
appearing for the respondent no.1 submitted
that Revision Application filed against the
order allowing the addition of party and
therefore, the order is interlocutory and no
Civil Revision Application is maintainable.
Because of the order impugned in the Civil
Revision Application, the proceedings before
the Lower Court are not likely to be decided
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finally. There is also no final decision in
the case. Thus, at the outset, it is submitted
that the Civil Revision Application is not
maintainable and there is no question of
hearing on merits of the case.
The learned counsel further submitted that
the
respondent no.1 Aurangabad
Pressing Factory had filed Civil Suit bearing
Ginning &
Regular Civil Suit no. 218 of 1972 before the
Civil Judge, Junior Division, Aurangabad
against one Nutanbai and three others for
injunction and declaration of ownership. The
plaintiff had claimed that the plaintiff is
owner of the land survey no. 57 bearing
Municipal No. 4-18-47/1 admeasuring 19A 8 G
situated at Jafar Gate, Bahadurpura,
Aurangabad. It is further submitted that as
the defendant in the said suit had tried to
encroach over portion of survey no. 57 and
erected hut of 10 ft. x 10 ft., the suit was
filed claiming injunction on the basis of
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title. The learned Judge has framed issues and
held that the plaintiff i.e. respondent no.1
herein, is owner of the suit property. The
learned counsel appearing for the respondent
no.1 invited my attention to the copy of the
judgment in Regular Civil Suit 218 of 1972,
which is annexed with the written notes of
i.e.
arguments. It is proved that, the plaintiff
respondent no.1, is owner and is in
possession of the suit property and granting
decree for injunction and also recovery of
possession of property admeasuring 10 ft x 10
ft. is sought by the plaintiff.
It is submitted that aggrieved by the
judgment and decree in Regular Civil Suit no.
218 of 1972, the Regular Civil Appeal no. 195
of 1975 was filed before the District Court,
Aurangabad and same came to be allowed.
Against that, the plaintiff had filed Second
Appeal no. 189 of 1979 before this Court. It
is submitted that by judgment dated
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16.12.1991, this Court has allowed the Second
Appeal and restored the decree of the trial
Court. Appeal was allowed in entirety.
However, there was interpolation and tampering
in the judgment. Para No. 17A on page 24A was
added and in the operative order words “as
against defendant no.2” have been added. In
view ofig this, the plaintiff
Application no. 415 of 2003 before this Court.
filed Civil
In the said application, one Sukhbirsingh S/o
Tarasingh Chatwal suo motu appeared and filed
Civil Application no. 5402 of 2004 and stated
that he had purchased the suit property during
the pendency of Appeal, by registered sale
deed dated 27.10.1978 and he claimed that he
is in possession of the suit property and if
this Civil Application is allowed, he is also
likely to be affected.
This Court however considered the
application and allowed his intervention. He
was heard at length along with other
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respondents and this Court held that there was
tampering and directed to correct the judgment
accordingly. Against the said judgment of this
Court, the husband of the present applicant
no.1-Sukhbirsingh Chatwal had approached the
Hon’ble Apex Court in S.L.P. No. 21339 of 2004
and same was dismissed on 25.10.2004.
It is submitted that during the pendency
of the suit, the said Sukhbirsingh had
purchased property and in violation of the
Court order, he had started construction in
the year 2005 over the suit property. It is
submitted that the present plaintiff had filed
Regular Darkhast no. 104 of 1994. When in the
year 2005, construction was started, the
decree holder plaintiff has filed injunction
application on 06.06.2005 and the said
application was allowed by the Civil Judge,
Junior Division, Aurangabad on 22nd August,
2005 and thereby the plaintiffs are restrained
from carrying out construction over the suit
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property. However, the construction is still
continuing and therefore, the contempt
proceedings are pending before the Trial
Court.
It is submitted that in utter disregard of
order of this Court, the present applicant
Sushil Kaur and others have executed sale deed
in favour of third party in respect of suit
property. Therefore, time and again, complaint
was lodged by present plaintiff with the
Municipal Corporation and other authorities.
It is further submitted that one news item was
published in the news paper and therefore, the
Regular Civil Suit no. 870 of 2006 was filed
by the revision applicants, in which no
injunction was granted. As soon as the
respondent no.1-Aurangabad Ginning and
Pressing Factory came to know about the said
suit, filed application for addition of
parties. It is submitted that the present
respondent no.1-Aurangabad Ginning and
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Pressing Factory has filed application for
addition of parties and same application was
allowed by order dated 05.12.2005. It is
submitted that the applicants herein by
concealing all real material facts and
litigation by filing Suit and Appeal have
obtained the order of injunction. The illegal
property.
construction have been carried out in the said
The sale deed is executed in
violation of the order of this Court. It is
further submitted that the respondent no.1 has
filed Writ Petition no. 3628 of 2006 before
this Court. In the said Writ Petition, the
Municipal Corporation, Aurangabad has clearly
stated that permission of construction given
to Sushil Kaur Chatwal and others is revoked
by order dated 14.08.2006 and Corporation is
not reconsidering the same.
The learned Counsel appearing for the
respondent no.1 invited my attention to the
order passed in the said Writ Petition and
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Review Petition. It is submitted that action
taken by the Municipal Corporation, Aurangabad
is in pursuance of constant complaint made by
respondent no.1 herein, who is real owner of
the factory. It is submitted that the
applicants have no regard to the law and the
orders of this Court and flouted the same. It
is submitted that in a proceedings i.e. Civil
Application no. 415 of 2003, said Sukhbirsingh
Tarasingh Chatwal, the husband of the
applicant no.1, had made a statement that he
had purchased the suit property from defendant
no.1-Nutanbai and he is likely to be affected
by the decision of this Court. It is further
submitted that now the applicants in the
subsequent proceedings are stating that the
suit property i.e. the property purchased by
them is different from the suit property. This
is totally and intentionally false statement
on oath in order to mislead the Court.
It is further submitted that the suit
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property which is purchased by the husband of
the present applicant no.1 during the pendency
of the suit from Nutanbai, and therefore, the
respondent no.1 herein who succeeded in Civil
proceedings against Nutanbai is necessary
party to the suit filed by the applicants-
plaintiffs. The learned Counsel appearing for
respondent no.1 in support of his contention
that the respondent no.1 is necessary party to
the suit invited my attention to the title
clause of Civil Suit bearing Regular Civil
Suit no. 218 of 1972 and submitted that
Nutanbai is the respondent no.1 in the said
suit, which was filed by respondent no.1
herein. The learned Counsel further invited my
attention to the title clause in Second Appeal
no. 189 of 1979, where the Aurangabad Ginning
and Pressing Factory i.e. respondent no.1
herein is appellant and Nutanbai is respondent
no.1 therein. The learned counsel further
invited my attention to the title clause of
the Writ Petition no. 3628 of 2006 in which
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the respondent no.1 is the petitioner and the
Municipal Corporation, Aurangabad is
respondent no.1 and there are also added
respondents in the said Writ Petition i.e.
Sukhbirsingh Chatwal, Sushilkaur Chatwal,
Gurbirsingh Chatwal, Sathirsingh Chatwal and
Rawelsingh Arjunsigh. Therefore, the learned
counsel ig would submit that
herein were made party respondents even in the
the applicants
said Writ Petition. The learned counsel
further invited my attention to Review
Application no. 56 of 2010 in Writ Petition
no. 3628 of 2006, in which the applicants
herein appear to be revision applicants in
those proceedings and the respondent no.1 is
party respondent no.1 even in those
proceedings. The learned counsel further
invited my attention to other documents and
also submitted that the respondent no.1 is a
necessary party in the suit, and therefore,
the Appellate Court has rightly allowed the
application filed by the respondent no.1 and
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directed the applicants to add the respondent
no.1 as respondent in the appeal. Therefore,
such order cannot be interfered with or upset
in the Revisional jurisdiction.
7. I have given due consideration to the
rival submissions and I have also perused the
Civil Revision Application, Annexures thereto,
other documents placed on record and written
notes of arguments filed by the learned
counsel for the respective parties. At the
outset it would be relevant to reproduce the
provisions of Order 1 Rule 10(2) of the Code
of Civil Procedure, which read thus:
“Order 1 Rule 10(2) : Court may
strike out or add parties : The Court
may at any stage of the proceedings,
either upon or without theapplication 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
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Court effectually and completely to
adjudicate upon and settle all thequestions involved in the suit, be
added.”
From perusal of the provisions of Order 1
Rule 10(2) of the Code of Civil Procedure, it
is abundantly clear that the Court may at any
stage of the proceedings, either upon or
without the application of either party, may
allow to join as party to the proceedings
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. Therefore,
the powers exercised by the Adhoc District
Judge-3, Aurangabad while allowing the
application of the respondent no.1 herein for
adding them as party to the suit filed by the
applicants are within the fore corners of law
and certainly governed by the provisions of
Order 1 Rule 10(2) of the Code of Civil
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Procedure.
Therefore, in my considered view, the
Adhoc District Judge-3, Aurangabad has acted
within the fore corners of the provisions of
Order 1 Rule 10(2) of the Code of Civil
Procedure. The District Judge had power to
entertain igthe application
respondent no.1 and such powers are exercised
filed by the
by the concerned Court properly.
8. From perusal of the contents of the
application filed by the respondent no.1
before the District Court, Aurangabad, it is
abundantly clear that in various proceedings,
the respondent no.1 was party. It is also not
in dispute that the suit bearing Regular Civil
Suit no. 218 of 1972, which was filed by the
respondent no.1 herein in the year 1972
against Nutanbai and three others, the husband
of the applicant no.1 did purchase the
property from said Nutanbai i.e. plot C.T.S.
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Nos. 13162 and 13163. Therefore, it is clear
that Nutanbai, the vendor of the applicants
and others were restrained from carrying out
any construction over the disputed site from
30.09.1975. It is also relevant to mention
that the judgment of Regular Civil Suit no.
218 of 1972 was challenged in Second Appeal
No. 189
of 1979, wherein
confirmed the decree passed by the trial Court
this Court has
in Regular Civil Suit no. 218 of 1972. Late
Sukhbirsingh did file Special Leave Petition
before the Hon’ble Apex Court, aggrieved by
the judgment of this Court in Second Appeal
no. 189 of 1979. This position is not disputed
by the applicants. Therefore, said Nutanbai
was admittedly party in Regular Civil Suit no.
218 of 1972, wherein the respondent no.1
herein was plaintiff and Nutanbai was
defendant and she was restrained from carrying
out the construction on disputed site. As
stated earlier, late Sukhbirsingh purchased
the property from Nutanbai and she was
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restrained as stated above. As such
Sukhbirsingh stepped into the shoe of
Nutanbai. Therefore, the Appellate Court after
appreciating the rival contentions and
documents brought on record held that,
Sukhbirsingh cannot say that the judgment and
decree passed in Regular Civil Suit no. 218 of
1972 on 30th September, 1975 is not binding on
him because he was not party to the said suit.
The deceased Sukhbirsingh had obtained the
permission for construction on 23rd June,
2005, however, he did not disclose that the
judgment and decree passed in Regular Civil
Suit no. 218 of 1972 dated 30th September,
1975 to the Municipal Corporation, while
obtaining the permission.
9. The Appellate Court after appreciating the
rival submissions and documents placed on
record, reached to the conclusion that, the
case in hand admittedly on the basis of a
decree, the execution proceeding bearing No.
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104 of 1994 and 166 of 1993 came to be filed
against the applicants herein for getting the
possession as per the judgment and decree and
restraining order of perpetual injunction from
causing any illegal interference either
personally or through their agents and
servants in possession of the plaintiff i.e.
respondent
appellate
igCourt
no.1 herein.
reached to
Therefore,
the conclusion
the
that,”it can safely be said that in view of
the judgment of the Regular Civil Suit no. 218
of 1972 and pendency of execution proceeding
the applicant has substantial interest in the
suit property.” It is further observed by the
appellate Court that, “the applicant i.e.
respondent no.1 herein is required to be added
as party to the appeal as respondent.”
10. On careful perusal of the documents
produced by the respondent along with the
written notes of arguments and avernments in
the application, which was filed before the
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appellate Court for adding him as party in the
appeal, it is crystal clear that the
respondent no.1 has a substantial interest in
the suit property. Therefore, for complete and
effectual disposal of the proceeding filed by
the applicants herein before the Courts below,
the respondent no.1 is a necessary party.
The
appellate Court on perusal of
avernments in the application and number of
documents produced on record, has reached to
the definite and correct conclusion that the
respondent no.1 is a necessary party in the
proceedings filed by the applicants, and
therefore, I do not find any reason to
interfere in the judgment and order passed by
the Adhoc District Judge-3, Aurangabad, which
is impugned in this Revision Application.
11. The Supreme Court in the case of “Ramesh
Hirachand Kundanmal V/s Municipal Corporation
of Greater Bombay and others” reported in
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(1992) 2 S.S.C. 524 held that while
considering the provisions of Order 1 Rule
10(2) of the Code of Civil Procedure, in case
of prayer for addition of necessary party, the
Court has judicial discretion which it has to
exercise having regard to facts and
circumstances of the case. In exercise of this
discretion ig court can direct
though dominus litis, to implead a person as a
a plaintiff,
necessary party defendant.
12. The Supreme Court in the case of
“Sumtibai and others V/s Paras Finance Co.
Regd. Partnership Firm Beawer (Raj) Through
Mankanwar (Smt) W/o Parasmal Chordia (Dead)
and others” reported in (2007) 10 S.C.C. 82,
while interpreting the provisions of Order 1
Rule 10(2) of the Code of Civil Procedure held
that, while determining who is proper party of
the proceedings, if a party can show a fair
semblance of title or interest, he can
certainly file an application for impleadment.
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13. The contentions on merit of the parties
are not taken away by the impugned judgment
and order. The revision applicants can agitate
all the points available to them during the
course of trial or hearing before the
appropriate Courts. Therefore, viewed from any
angle,
impugned
in my
judgment
opinion,
and
interference
order in
in
revisional
the
jurisdiction is wholly unwarranted, since the
power/jurisdiction exercised by the Adhoc
District Judge-3, Aurangabad is perfectly
sustainable under the provision of Order 1
Rule 10(2) of the Code of Civil Procedure.
Therefore, the impugned judgment and order
stands confirmed. The Civil Revision
Application stands rejected. Rule stands
discharged.
Sd/-
[ S.S. SHINDE, J ]
ga s/cra105.06
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