SRJ 1 wp-9995-7761-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9995 OF 2009 Smt. Muktabai S. Wanjale (Since deceased) through her L.Rs. Dattatraya S. Wanjale & Others .. Petitioners. V/s. Shri Daulata B. Mazire & Others .. Respondents. AND WRIT PETITION NO.7761 OF 2009 Smt. Mathubai @ Yamunabai K. Pawar & Others .. Petitioners. V/s. Shri Ananta S. Sutar & Others. .. Respondents. Mr. A.Y.Sakhare, Sr. Advocate i/b. YKS Legal, for Petitioners in both the matters.. Mr G.S.Godbole i/b. Mr. D.R.Kawale & Mr.Vipin Kasle, for Respondent Nos. 2 to 5 in W.P. No.9995 of 2009 and for Respondent Nos. 1, 4 to 6 in W.P. No.7761 of 2009. CORAM :A.S.OKA,J. DATE :7th APRIL,2010 P.C.:- 1] For the sake of convenience, both the Petitions were heard together. The parties were to put the notice that the Petitions will be decided finally at the stage of admission. SRJ 2 wp-9995-7761-09.sxw 2] Writ Petition No.9995 of 2009 arises out of Special Civil Suit No.215 of 1999 filed by the Petitioners therein. The Petitioners have filed the suit for declaration that the sale deed dated 7th September, 1996 is illegal. A prayer is also made for setting aside the sale deeds dated 30th January, 2001 and 31st December, 2003. The other substantive relief claimed in the suit is that the Petitioners be declared as the owners of the 3/4th share in the suit property, bearing Gat No.107 at Village Bhukum, Taluka Mulshi,District Pune more particularly described in paragraph 1 of the Plaint. It is stated that one Balaji Mazire was the original owner of the suit property. The Petitioners in Writ Petition No.9995 of 2009 are the daughters of said Balaji Mazire and the 1st Respondent is the son of the said Balaji Mazire. The said Balaji died on 9th December, 1977 and, therefore, the Petitioners and 1st Respondent in the said Petition became entitled to inherit the suit property. It is alleged that the 1st Respondent and/or the 2nd and 3rd Respondents in collusion with each other executed a sale deed dated 7th September, 1996 in which the names of Petitioners have been shown as vendors and the names of the 2nd and 3rd Respondents have been shown as the consenting party and the purchaser respectively. It is alleged in the suit that the 1st Respondent/1st Defendant purported to execute the sale deed as the Constituted Attorney of the Petitioners. It is contended that the Petitioners have never executed any such Power of Attorney. By carrying out amendment in the plaint, it is SRJ 3 wp-9995-7761-09.sxw stated that 3rd Respondent (3rd Defendant) sold a part of the suit property to 4th Defendant Ananta Sadashiv Sutar (4th Respondent in W.P. No.9995/2009). The sale deed was executed in his favour on 30th January, 2001. It is alleged that the 3rd Respondent also sold a part of the suit property by a sale deed dated 31st December, 2003 to 5th Defendant Vilas Anantrao Mazire (the 5th Respondent in Writ Petition No.9995 of 2009.) 3] An application for amendment of the Plaint was made for incorporating a declaration as regards the alleged Power of Attorney dated 4th February, 1989 as well as 15th February, 1995. It is alleged in the application that, in the Written Statement of the 2nd and 3rd Respondents, they have come out with the case that the Petitioners have executed a Power of Attorney dated 4th February, 1989 appointing the 1st Respondent as their Constituted Attorney. It was pointed out in the Written Statement of 3rd and 4th Respondents that the 1st Respondent has assigned his rights as a Constituted Attorney by executing a Power of Attorney dated 15th February, 1995 in favour of the 2nd Respondent. It is pointed out that the sale deed dated 7th September, 1996 has been executed on the basis of Power of Attorney dated 4th February, 1989 and the further sale deeds dated 31st December, 2003 and 30th January, 2001 have been executed on the basis of the subsequent Power of Attorney dated 15th February, 1995. By amendment, a prayer was sought to be made for seeking a declaration regarding the said two documents by contending SRJ 4 wp-9995-7761-09.sxw that the documents are null and void. The said application was contested by the Respondents and in particular by the Respondent Nos.2 and 3. By impugned order in the said Writ Petition no.9995 of 2009, the said application at Exhibit 100 has been rejected mainly on the ground of bar of limitation. 4] Writ Petition No.7761 of 2009 has been filed by the same Petitioners who are claiming through deceased Balaji Mazire. One Ananta S.Sutar who is the 4th Respondent in Writ Petition No.9995 of 2001 and 4th Defendant in the suit filed by the Petitioners filed Special Civil Suit No. 2254 of 2007. The said suit was filed against one Sanjay T. Hagawane. The prayer in the suit relates to the property bearing Gat No.70 at Village Bhukum, Taluka Mulshi,District Pune. It is stated that the suit property was owned by the Petitioners and the said Daulata B. Mazire (legal representative of Balaji Mazire). Reliance is placed on the same Power of Attorney dated 4th February, 1989 allegedly executed by the Petitioners in favour of Daulata B. Mazire (the 1st Respondent in Writ Petition No. 9995 of 2009). It is stated that on the basis of said Power of Attorney, the said Daulata B. Mazire executed a Power of Attorney on 15th February, 1995 in favour of one Ashok A. Mazire (the 2nd Respondent in Writ Petition No. 9995 of 2009) and on the basis on the said Power of Attorney dated 15th February, 1995, the said Ashok executed sale deed dated 9th September,1997 favouring the said Plaintiff Ananta (1st Respondent in Writ Petition No.7761 SRJ 5 wp-9995-7761-09.sxw of 2009). The allegation in the suit filed by the said Ananta S. Sutar is that after the execution of the aforesaid sale deed, the Defendant in the said Suit Sanjay T. Hangwane (the Respondent No.2 in Writ Petition No.7761 of 2009) obtained a sale deed dated 19th January, 2001 in respect of the suit property from the said Daulata Mazire, on the basis of the Power of Attorney dated 4th February, 1989 which is sought to be challenged in the suit filed by the Petitioners by amending the plaint. The contention in the suit is that as the Plaintiff Ananta S. Sutar had already became an owner of the suit property by the sale deed dated 9th September 1996, the said sale deed dated 19th January, 2001 was illegal and the Defendant Sanjay in the said suit was not entitled to claim any right, title or interest on the basis of the sale deed. In paragraph 7 of the plaint filed by the said Ananat S. Sutar which is a subject matter of Writ Petition No.7761 of 2009, there is a specific reference to the Suit No. 215 of 1999 filed by the Petitioners in which it is contended by Petitioners that they had never executed any Power of Attorney in favour of Daulata. 5] In the said suit filed by Ananta S. Sutar, an application was made by the Petitioners under Rule 10 (2) of Order I of the Code of Civil Procedure, 1908 (herein after referred to as the said Code)praying that the Plaintiff therein be directed to implead them as party Defendants. By the impugned order in Writ Petition No.7761 of 2009, the said application has been rejected. SRJ 6 wp-9995-7761-09.sxw 6] The Learned Senior Counsel appearing for the Petitioners in support of Writ Petition No.9995 of 2009 submitted that in the suit, there is a specific averment that the Petitioners have never executed any Power of Attorney in favour of 1st Defendant Daulata who is the 1st Respondent. He submitted that the prayer in the suit is that the sale deed executed by the said Daulata Mazire and the sale deed executed by Ashok Mazire are null and void. He pointed out that there is a specific case already made out that the Petitioners have never appointed 1st Defendant  Daulata Mazire as their Constituted Attorney. There is already a challenge to the Power of Attorney allegedly executed by the Petitioners in favour of the said Daulata Mazire. He submitted that a specific prayer is sought to be incorporated by the amendment for challenging the Power of Attorney dated 4th February, 1989 by contending that they have not executed any such Power of Attorney. He submitted that what is sought to be incorporated is a relief of declaration which is merely a consequential relief on the basis of the averments already incorporated. The Learned Counsel appearing for the 2nd to 5th Respondents submitted that in the suit of the year 1999, a declaration is sought to be incorporated as regards the documents of Power of Attorney executed way back in the year 1989 and 1995. He submitted that the prayer sought by amendment is barred by limitation. He pointed out that in the sale deed executed by the 1st Defendant  Daulata Mazire, there is a reference to the Power of Attorney executed by the SRJ 7 wp-9995-7761-09.sxw Petitioners in favour of Daulata. He submitted that the Trial Court was justified in not permitting the time barred amendment. He has placed reliance on the decisions of Apex Court in the case of Radhika Devi vs. Nakramko Singh & Others (AIR 1996  SC-2358) & P.A.Ahammed Ibrahim vs. Food Corporation of India (AIR 1999  SC-3033). 7] As far as Writ Petition No.7761 of 2009 is concerned, the Learned Senior Counsel appearing for the Petitioners pointed out that on the application made by the Ananta S.Sutar, the Plaintiff in Special Civil Suit No.2254 of 2007 has been impleaded as party Defendant to the suit filed by the Petitioners. He submitted that Ananta S. Sutar who is the Plaintiff has claimed title on the basis of sale deed dated 9th June, 1996, allegedly executed by the said Ashok Mazire on behalf of Daulata Mazire and the Petitioners on the basis of the said Power of Attorney dated 15th February 1995 and there is a specific challenge to the said Power of Attorney in the suit filed by the Petitioners. He, therefore, submitted that Petitioners are the necessary parties to the said suit. The Learned Counsel appearing for the 1st and 4th to 6th Respondents submitted that what is challenged in the suit no.2254 of 2007 is the sale deed dated 19th January, 2001. He submitted that the property subject matter of the said suit is totally different from the property subject matter of the suit filed by the Petitioner. He submitted that merely because the Plaintiff in the said suit being a purchaser of the suit property subject matter of the suit SRJ 8 wp-9995-7761-09.sxw filed by the Petitioners is impleaded as a party to the said suit, the Petitioners have no locus in the suit No. 2254 of 2007. He submitted that Petitioners have no direct interest in the subject matter of the suit. He relied upon the decision of the Apex Court in the case of Ramesh H. Kundanmal vs. Municipal Corporation of Greater Bombay and Others [(1992) 2 SCC 524)]. 8] I have given careful consideration to the submissions. As far as Writ Petition No.9995 of 2009 is concerned, the Petitioners are the Plaintiffs. Admittedly, the suit property was owned by the predecessor of the Plaintiffs and 1st Defendant Daulata. The name of the said predecessor is Balaji Mazire. The said Daulata purportedly executed a sale deed on 7th September, 1996 in respect of the suit property on the basis that a Power of Attorney allegedly executed on 4th February,1989 by the Petitioners in his favour. The challenge in the suit is to the said sale deed dated 7th September, 1996 which is a sale deed purportedly executed on behalf of the Petitioners in favour of the 3rd Respondent Ganesh. In paragraph 7 of the Plaint, there is a specific assertion that the Petitioners have never executed any Power of Attorney in favour of the said Daulata and, therefore, said Daulata was not entitled to execute any sale deed. It appears that on the basis of the alleged Power of Attorney dated 4th February 1989, the said Daulata executed a Power of Attorney dated 15th September,1995 in favour of Ashok (2nd Respondent). There were two further sale deeds executed. The 3rd Respondent SRJ 9 wp-9995-7761-09.sxw (3rd Defendant in the suit of the Petitioners) executed a sale deed in respect of a part of the suit property in favour of Ananta S. Sutar who is the Plaintiff in the Suit subject matter of the Writ Petition No.7761 of 2009. The sale deed was executed on 30th January, 2001. The 3rd Respondent executed another sale deed dated 31st December, 2003 in respect of other part of the suit property in favour of the one Vilas who has been impleaded as the 5th Defendant to the suit filed by the Petitioners. 9] In the application for amendment, it is contended by the Petitioners that in the Written Statement of 2nd and 3rd Respondents, a reliance was placed on Power of Attorney dated 4th February, 1989 allegedly executed by the Petitioners, and a further Power of Attorney dated 15th February, 1995 allegedly executed by the 1st Defendant  Daulata on the basis of the said Power of Attorney. By the amendment, prayers are sought to be incorporated for challenging the two documents of Power of Attorney. There is already a specific challenge in the plaint to the said Power of Attorney allegedly executed by the Petitioners in favour of 1st Defendant  Daulata. The said challenge is found in paragraph 7 of the Plaint. Even if the amendment is allowed, by filing additional Written Statement, the Respondents can raise an issue of bar of limitation. The issue of bar of limitation is a mixed question of law and facts. The trial Court committed an error by rejecting the amendment on the basis of bar of limitation. At this stage it cannot be said that the proposed amendment is barred by SRJ 10 wp-9995-7761-09.sxw limitation. The prayers sought to be introduced by the amendment are consequential prayers which are based on the pleadings of the Petitioners in the plaint. The proposed amendment is necessary to avoid multiplicity of the proceedings. Therefore, Writ Petition No.9995 of 2009 deserves to be allowed. 10] As far as Writ Petition No.7761 of 2009 is concerned, the Plaintiff Ananta S. Sutar is 4th Defendant in the suit filed by the Petitioners. The property subject matter of the suit filed by the said Ananta S.Sutar is different from the suit property subject matter of the suit filed by the Petitioner. But the suit property subject matter of the suit filed by said Ananta S. Sutar was admittedly owned by the Petitioners and the said Daulata. The Plaintiff Ananta S. Sutar claims to be the owner of the property on the basis of sale deed dated 9th September, 1996 purportedly executed in his favour by the said Ashok Mazire on behalf of Daulata Mazire and the Petitioners. The suit for declaration is filed on the basis of title based on the said sale deed. On the basis of the said title, the said Ananta Mazire has challenged the sale deed executed by the said Daulata Mazire in favour of the Defendant Sanjay. The subsequent sale deed has been executed by the said Daulata on the basis of Power of Attorney dated 4th February, 1989 allegedly executed by the Petitioners. SRJ 11 wp-9995-7761-09.sxw 11] In the suit filed by the Petitioners, the specific challenge by the Petitioners is that they have never executed Power of Attorney dated 4th February, 1989 in favour of the said Daulata. The sale deed on the basis of which Plaintiff Ananta S. Sutar is claiming ownership is executed by Ashok on the basis of Power of Attorney dated 15th February, 1995 executed by the said Daulata on the basis of the alleged Power of Attorney dated 4th February, 1989 executed by the Petitioners. In the suit filed by the Petitioners, if it is held that the Petitioners have not executed any Power of Attorney, the finding will directly affect the title claimed by the Plaintiff Ananta in the suit. In such a case the Petitioner will be entitled to claim title to the suit property in the suit filed by the said Ananta. Therefore, the Petitioners have a direct interest in the subject matter of the suit. There was no reason for the Trial Court to reject the application for impleadment made by the Petitioners. 12] Hence, I pass following order:- WRIT PETITION NO.9995 OF 2009 (i) The impugned order dated 6th October, 2009 passed below at Exhibit 100 is quashed and set aside; (ii) Application at Exhibit 100 is allowed, subject to Petitioners paying costs of Rs. 5,000/- to 2nd to 5th Respondents. SRJ 12 wp-9995-7761-09.sxw (iii) Amount of costs shall be deposited with the Trial Court within a period of ten weeks from today. (iv) The amendment shall be carried out within two weeks from the date on which the writ of this order is received by the Trial Court. (v) After amendment is carried out, it will be open for the defendants to file additional Written Statement raising all contentions including contention of bar of limitation. (vi) Including the contention of bar of limitation, all contentions of the parties are expressly kept open. (vii) Writ Petition is allowed in the above terms. WRIT PETITION NO.7761 OF 2009 (i) The impugned order dated 11th August, 2009 is quashed and set aside. (ii) The application at Exhibit 46 is hereby allowed. (iii) Amendment shall be carried out in terms of the said application, by the Plaintiff within a period of two weeks from the date on which the writ of this order is received by the Trial Court. SRJ 13 wp-9995-7761-09.sxw (iv) All contentions on merits are expressly kept open; (v) Writ Petition is allowed in the above terms. (A.S.OKA,J.)