1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.129 OF 2009 Mohammad Salahuddin S/o Md.Bahauddin Quazi Age : 32 years, Occ :Mutavalli, R/o Jama Masjid, Shevgaon, Tq. Shevgaon, Dist.Ahmednagar. Petitioner V/s 1. Wakf Board Through it’s Chief Executive Officer, having its office at Pavanchakki, Aurangabad. 2. Shaikh Chand S/o Fakir Mohammad Age : 50 years, Occ : Business, R/o Near Jama Masjid, Shevgaon, Dist. Ahmednagar. 3. Hamiduddin Chiraguddin Kazi Age : 73 years, Occ : Business, R/o As above. 4. Syed Mohammad Syed Chand Age : 70 years, Occ : Business, R/o As above. 5. Abdulbhai Abdul Aziz Qureshi Age : 73 years, Occ : Business, R/o As above. Respondents ------------------------------------------------------ Mr.S.M.Godsay, Advocate for the petitioners. Mr. Z.M. Pathan, Advocate for respondent nos.3 to 5. Mr.M.G. Mustafa, Advocate for respondent no.1. ------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 3rd December, 2009. 2 ORAL JUDGMENT : 1. This revision application is filed by the original tenant, who has joined as defendant no.2, who is respondent no.2 herein. In the said suit, the respondent nos.3 to 5 herein had filed an application under Order 1 Rule 10(2) of Civil Procedure Code for joining them as party defendants in the said suit. It was the case put forth by the defendant nos.3 to 5 before Wakf Tribunal that they are the trustees of the Jama Masjid Trust, and hence, they are necessary parties in the said suit. According to them, the plaintiff-petitioner herein has no right to institute the suit, as he is not duly appointed as Mutawali. 2. The Wakf Tribunal has allowed the said application and has directed the plaintiff-petitioner to join the respondent nos.3 to 5 as defendants in the said suit. This was by an order dated 04.08.2009 passed below Exhibit-11 in the said suit. The Trial Court observed that it is just and necessary to join the applicants/defendants in the said suit for proper adjudication of their rights in the said suit, and 3 that the rights between the parties cannot be decided legally and effectually in their absence. It has further observed that in order to avoid multiplicity of proceedings, it is just and necessary to allow the application, and hence, the same is allowed, directing the plaintiff to add the respondent nos.3 to 5 as defendants in the said suit. 3. This is the subject of challenge in the said application on the ground that the petitioner is dominus litis and it is for him to decide as to whom he should joined as defendants and against whom he should claim relief. It is the contention raised by Shri.S.M. Godsay, the learned Counsel appearing for the petitioner that the respondent nos.3 to 5 are not at all necessary parties to the suit, no relief is claimed against them, and there is no reason for impleading them as party defendants in the said suit. He has further urged that it is not necessary for effectual and complete adjudication of the dispute involved in the suit, to join the defendant nos.3 to 5 as party defendants and the Trial Court has committed an error in allowing the said application. 4 4. Shri.Z.M. Pathan, the learned Counsel appearing for the respondent nos.3 to 5 has opposed this civil revision application, on the ground that the Trial Court has exercised discretion upon the findings that joining of the respondent nos.3 to 5 as party to the suit, is for effectually and completely adjudicating the dispute involved in the suit, and hence, said discretion being based upon the relevant consideration, does not require any interference in the revisional jurisdiction of this court. He further submits that the plaintiff has no right to institute the suit, as the respondent nos.3 to 5 are the trustees of the trust Jama Masjid and they have to recover more than amount of Rs.4,000/- from the defendant no.2. According to the learned Counsel, if the respondent nos.3 to 5 are not permitted to be joined in the said suit, then their rights would be affected. The learned Counsel relied upon the two judgments (i) reported in 2005(3) Mh.L.J. 330 delivered by the Hon'ble Apex Court in the case of Amit Kumar Shaw and another V/s Farida Khatoon and another and (ii) reported in 2005 (4) Mh.L.J.360 5 (Chitralekha Builders and another V/s G.I.C. Employees Sonal Vihar Co-operative Housing Society Ltd., and others). 5. Undisputedly, the said suit is for eviction of the original defendant no.2 from the suit premises filed by the petitioner-orig.plaintiff. The plaintiff is the dominus litis, and it is for him, as to whom he should join as party. The plaintiff is claiming eviction from the suit premises of the defendant no.2 and the respondent nos.3 to 5 have no role to play in it. The dispute regarding the authority of the plaintiff to act as Mutawali or regarding the claim of the defendant nos.3 to 5 being the trustees of the trust, is pending in some other proceedings for adjudication. If at all, the decree is passed for eviction, then there is no question of the same being adverse to the interest of trust. 6. The judgment of the Apex Court delivered in Amit Kumar's case cited supra, relied upon by the learned Counsel for the respondent nos.3 to 5 lays down that the power of Court to add party to 6 proceeding cannot depend solely on the question, whether he has interest in the suit property, and the question is, whether the right of a person may be affected if he is not added as a party, and such right, however, will include necessarily an enforceable legal right. So far as the present case is concerned, there is no findings recorded by the Tribunal that any of the legally enforceable right of the respondent nos.3 to 5 are likely to be affected. Merely because the respondent nos.3 to 5 claim some interest in the property as trustees, will not make them necessary parties. The Judgment is therefore, clearly distinguished. 7. So far as the second judgment relied upon by the learned Counsel in Chitralekha Builders case, the same is not applicable with the present case, for the reasons that this Court had recorded finding that the interest of the appellants therein, if any, is bound to be affected in the event they are not allowed to be joined as party to the suit. It was held that the appellants are entitled to defend the suit. The discretion exercised by the Trial Court in permitting 7 the applicants to be joined as defendants has not been therefore, interfered with. The judgment is distinguishable as in the present case this is not the position. The interest in the property as trustees is different than the interest in the property of an individual, which is a direct interest. Apart from this, in the said judgment, certain observations of the decision of Punjab and Hariyana High Court in the case of Banarasidass Durgaprasad V/s Panna Lal Ram Richpal, reported in AIR 1969 Punjab and Haryana 57 have been referred to and wherein, it has been held that as a rule, the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. In the present case, the plaintiff has not chosen to join the respondent nos.3 to 5 as defendants. No relief is claimed against the respondent no.3 to 5 and hence, it was not necessary for effectually and completely adjudicate the issue involved in the suit, to join the respondent nos.3 to 8 5 as a defendants. 8. The Tribunal has further recorded the findings that it is just and necessary to allow application to avoid multiplicity of proceedings, however, this cannot be the reason and the application can not be allowed under Order 1 Rule 10(2) on these grounds. 9. In view of the above, the civil revision application is allowed. The order dated 04.08.2009 passed below Exhibit-11 in suit No.62/2008 is quashed and set aside. No order as to costs. (R.K. DESHPANDE) JUDGE GAS/cra129.09