1 wp6947-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6947 OF 2011 Madapuram Charya Ibrahim Kutty .. Petitioner Versus Mohammod Hassan s/o Hafiz Habibulla and others ... Respondents Mr. S. A. Sawant a/w Mr. Ketan Joshi i/by Khilnani & Co. for the petitioner Mr. R. A. Thorat a/w Mr. Kamlesh Mali for respondent Nos. 1, 2, 4 and 5 Mr. Anil C. Singh a/w Mr. Anil D. Yadav i/by Mr. D.R.Shah for the Intervenor CORAM : R. Y. GANOO, J. DATED : 17rd October, 2011 P.C. 1. Heard learned advocates on both the sides. 2. Rule. Rule made returnable forthwith. Learned Advocate Mr. Thorat appearing on behalf of respondent Nos. 1, 2, 4 and 5 waives service. Mr. Anil Singh appearing for the intervenor waives service. By consent, the petition is taken up for hearing. 3. Order dated 5th August, 2011 passed in Chamber Summons No. 382 of 2011 in Short Cause Suit No. 1113 of 2011 filed in the City Civil Court at Bombay is challenged in this petition. 4. The suit came to be filed by the petitioner against in all six persons, who are shown as respondent nos. 1 to 6. By the said suit, the petitioner wanted 2 wp6947-11 to seek declaration that he is in possession of the suit premises and the respondent nos. 1 to 6 are trying to interfere with his possession. In the said suit, the applicant-intervenor filed a Chamber Summons for being joined as party on the ground that he should be joined as party defendant as according to him he is in possession of the suit premises. That Chamber Summons has been allowed by the aforesaid order dated 5th August, 2011. Hence, the petitioner has filed this petition. 5. After having considered the record, I am inclined to observe that it is the case of the petitioner that he is in possession of the suit premises and the said case is being disputed by respondent Nos. 1 to 6. The claim of the applicant-intervenor that he is in possession by itself forms a different cause of action, so far as petitioner is concerned. In any case, any order which will be passed in the suit will not bind the applicant intervenor as there is no lis between the petitioner and applicant -intervenor. If at all the applicant- intervenor wants to protect his alleged possession, he is free to institute a separate suit for the purposes of protecting his alleged possession qua the petitioner, respondent Nos.1 to 6 or any other persons who is likely to threaten his possession. In my view, the learned Judge of the City Civil Court failed to appreciate the point that the present applicant-intervenor is trying to join himself in the suit without there being lis between him and the petitioner and his presence is not required in order to decide the lis between the petitioner and respondent nos. 1 to 6. 3 wp6947-11 6. In view of the aforesaid observations, impugned order dated 5th August, 2011 is required to be set aside. Hence the following order. i. The Impugned order dated dated 5th August, 2011 passed by the learned Judge of the City Civil Court, Bombay in Chamber Summons No. 382 of 2011 filed in Short Cause Suit No. 1113 of 2011, is set aside. ii. It is clarified that any order which will be passed in the aforesaid suit will not bind the applicant intervenor. It is also clarified that if the applicant intervenor is interested in protecting his alleged possession and right in respect of the property over which he is trying to put his claim, he is free to institute a separate suit and the said suit shall be tried on its own merit. iii. The petition is dismissed with no order as to costs. (R. Y. GANOO, J.)