1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7752 OF 2008 Shrimant Shivanna Nimbale .... Petitioner Vs. Chandrakant S. Nimbale & Ors. .... Respondents Mr. R.S. Alange for the Petitioner. Mr. Amit Sale for the Respondents. CORAM : A.S. OKA, J. DATE : 30 TH SEPTEMBER, 2009. P.C. : 1. The submissions of the learned Counsel appearing for the parties were heard on the earlier date. The petitioner is the original plaintiff and the respondents are the original defendants. The petitioner filed a suit for partition and separate possession of his alleged 5/16th share in the suit property. An application was made by the 2 petitioner at Exhibit 20 for amendment of the plaint. By the proposed amendment, it was sought to be contended that during the pendency of the suit, the first respondent (first defendant) has alienated a part of the suit property by sale deed dated 14th December, 2007 in favour of a third party. By the proposed amendment, a paragraph was sought to be added in the plaint contending that the said sale deed was illegal which is hit by the doctrine of lis pendens and the sale deed was not binding on the petitioner. By the said application, a prayer was made for impleading the purchaser as a party. The said application was opposed by the first respondent by contending that the application was made after commencement of the trial and no reasons have been stated for delay in filing the application. The learned trial Judge rejected the application by the impugned order. What was held by the trial court was that in the garb of applying for amendment, in fact the petitioner was invoking 3 jurisdiction of the Court under Rule 10 of Order I of the Civil Procedure Code, 1908. The learned Judge observed that the transfer was hit by the doctrine of lis pendens. The learned trial Judge, therefore, proceeded to reject the application. 2. After having heard the learned Counsel appearing for the parties and after considering their submissions, I am of the view that the impugned order deserves to be set aside. The learned trial Judge is right to the extent that in fact the application was for impleading the purchaser as a party. The application made by the petitioner might have been styled as application for amendment of the plaint. A reference to an incorrect provision of law in an application does not preclude the Court of law from exercising its power under the appropriate provisions of the Statute. The third party purported to acquire a part of the suit property during the pendency of the suit. The suit is for 4 general partition. It is true that Section 52 of the Transfer of Property Act, 1882 will apply. Considering that the suit was for partition and separate possession, even assuming that the third party is not a necessary party, surely such a party will be a proper party to the suit. A plaintiff is a dominus litus. If the plaintiff desires to implead the purchaser as a party, that permission could not have been denied. Apart from impleading the purchaser as a party, by a consequential amendment by adding a paragraph, it was sought to be pleaded that the third party (added defendant) had purchased the property during the pendency of the suit. Essentially the application was one under Rule 10(2) of Order I of the Code of Civil Procedure, 1908 and, therefore, by applying the proviso to Rule 17 of Order VI of the said Code the application could not have been rejected. It is obvious that even if application is allowed, all contentions of the first respondent as well as the added defendant will remain 5 open which can be raised by filing additional written statement. 3. Hence, I pass following order : "O R D E R" (i).The impugned order dated 20th September, 2008 passed by Civil Judge, Junior Division, Akkalkot in Regular Civil Suit No.52 of 2004 is quashed and set aside. (ii).The application made by the petitioner at Exhibit 65 is hereby allowed. (iii).After the amendment is carried out, it will be open for the first respondent to file additional written 6 statement raising all permissible contentions. (iv).All contentions of the parties in the pending Suit including the contentions of the added defendant are expressly kept open. (v).The Writ Petition is allowed in above terms. A.S. OKA, J.