1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10539 OF 2009 Smt.Mohanabai Nandlal Rathi & Ors. .. Petitioners versus Mrs.Vasanti Shankar & Ors. .. Respondents Mr.Ashok Tajane for the petitioners. Mr.H.E.Palwe for respondent Nos.1 and 2. Mr.M.S.Karnik for respondent Nos.3 and 4. CORAM : A.S.OKA, J. DATE : 30th April 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. 2. The challenge in this writ petition under Article 227 of the Constitution of India is to the judgment and order dated 10th November 2009 passed by the trial Court below application at Exhibit 115. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. The petitioners have filed a Special Civil Suit No.278 of 2007. The suit relates to property described in paragraph 1 of the plaint which reads thus: “All that land and parcel of land admeasuring 10355.85 sq.meters with sanctioned F.S.I admeasuring 10355.85 sq meters including the 2 T.D.R area admeasuring 2191.08 sq meters excluding the area of dispensary of 200 sq meters out of land survey No.17 C/5+6, situated at Devlali within limits of Nashik Municipal Corporation bounded as follows ....” 3. The respondents are the defendants in the suit filed by the petitioners. The declaration claimed in the said suit is that transaction between the petitioners and 1st and 2nd respondents in respect of suit property stands validly rescinded. The petitioners claim to be owners of the suit property. It was contended that an agreement of sale was executed by and between the petitioners and 1st and 2nd respondents on 8th April 2002. A reference has been made to the terms and conditions of the said agreement. It is contended that the 1st and 2nd respondents committed breach of the agreement and therefore by issuing a legal notice , the said agreement was rescinded by the petitioners. 4. In the plaint it is pointed out that 1st and 2nd respondents executed a registered agreement in favour of the 3rd and 4th respondent on 15th September 2005. A reference has been made to notice published by 3rd and 4th respondents in which reliance has been placed on a consent deed executed by the petitioners in favour of the said respondents. There is also a challenge in the suit is to the agreement dated 15th September 2005. The prayer for perpetual injunction has been made in the suit. 5. There is a suit being Special Civil Suit No.127 of 2009 filed by the the 3 third party-the Microse India Ltd to which present petitioners have been impleaded as party defendants no.2 to 7. Even respondents in the present petition have been impleaded as party defendants to the said suit. It is not in dispute that the said suit relates to the same property. A reference has been made in the said suit to the alleged development agreement dated 8th April 2002 executed by the petitioners in favour of 8th and 9th defendants therein. (the respondent nos1 and 2 who are the defendant nos.1 and 2 in the suit filed by the petitioners). In the said suit reliance has been placed on the agreement dated 15th September 2005 executed by the 1st and 2nd respondents in favour of the 3rd and 4th respondents. The said 3rd and 4th respondents have executed an agreement of sale dated 11th April 2007 in favour of the plaintiff-the Microse India Ltd in the said suit. The first prayer in the suit is for specific performance of the said agreement. 6. An Application was made by the petitioners at Exhibit 115 for amendment of the plaint and for impleading the Micros India Ltd, the plaintiff in Special Civil Suit No.127 of 2009 as a defendant and for challenging the transaction entered into by and between 3rd and 4th respondents on one hand and the Microse India Ltd on the other hand. The said application was contested by the respondents and by the impugned order, the same has been rejected. 7. The learned counsel appearing for the petitioners submitted that the 4 transaction with the third party appears to have been executed by the 3rd and 4th respondents herein who are claiming on the basis of an agreement executed by the 1st and 2nd respondents. It is submitted that in any case the third party is a proper party to the suit as its presence at the time of trial is necessary to adjudicate upon the disputes involved in the suit. He pointed out that in the suit filed by the proposed defendant , the petitioners have been impleaded as parties and he pointed out that reliefs have been claimed even as against the present petitioners in respect of the suit property. The learned counsel appearing for the 3rd and 4th respondents supported the impugned order. He submitted that though the petitioners have no direct interest in the subject matter of the suit filed by the third party, he has been impleaded in the said suit. He submitted that the petitioners cannot be permitted to incorporate a challenge to the transaction executed in favour of the said third party as the entire nature of the suit will be changed. 8. I have given careful consideration to the submissions. The petitioners being the plaintiffs are dominus litis. The petitioners have been impleaded as party defendants in the suit filed by the third party. The third party is claiming through the defendants (respondents herein) to the suit filed by the petitioners. The petitioners executed an agreement for sale of the suit property in favour of the first and second respondents. The first and second respondents have executed an agreement with the third and fourth respondents in respect of the suit property. On the basis of the said 5 agreement, the third and fourth respondents have purported to execute an agreement in favour of the third party. In the suit filed by the petitioners they have claimed declaration that the transaction between them and the first and second respondents stands validly rescinded. In the said suit, the petitioners have also challenged the agreement executed by and between the first and second respondents on one hand and the third and fourth respondents on the other hand. It is pertinent to note that the third party sought to be impleaded by the petitioners is claiming on the basis of an agreement executed by the third and fourth respondents and in the suit filed by the said third party, specific performance of the said agreement has been sought. Therefore the third party-proposed defendant is a proper party to the suit filed by the petitioners considering the nature of reliefs claimed by the petitioners. In fact, the third party may be affected by the decree which may be passed in the suit filed by the petitioners. The learned trial Judge has completely ignored the fact that the petitioners being dominus litis have a right to implead a party to their suit. The petitioners are therefore entitled to join the said third party as a defendant and also to carry out necessary amendments to the plaint. The impugned order is illegal and deserves to be quashed and set aside. Even if the third party is impleaded as defendant, all contentions of such third party remain open which can be agitated by the said third party. Hence, the petition must succeed and I pass the following order: : O R D E R : 6 (a) The impugned order dated 10th November 2009 is quashed and set aside. The application at Exhibit 115 is allowed. (b) The petitioners will carry out amendment within a period of two weeks from the date on which writ of this order is received by the trial Court. (c) It will be open for the added defendant to file written statement and contest the suit by taking all permissible contentions. It will be also open for the respondents to file additional written statement. (d) Writ petition is disposed of in above terms with no order as to costs. (A.S.OKA,J)