1 wp1301.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1301 OF 2011 Sumanbai W/o Ramgopal Biyani ..PETITIONER -VERSUS- Vitthal S/o Ganpatrao Gutte and others ..RESPONDENTS ..... Mr. S.G. Chapalgaonkar, Advocate for petitioner. Mr. S.V. Mundhe, Advocate for respondent no.1. Mr. Patil, Advocate for respondent no.2. Mr. D.R. Korade, A.G.P. for respondent nos. 7 and 8. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 19TH APRIL, 2011. PER COURT : 1. Heard Advocates Mr. Chapalgaonkar for petitioner-original defendant no.7, Mr. Mundhe for respondent no.1, Mr. Patil for respondent no.2 and learned A.G.P. for respondent nos. 7 and 8. 2. The respondent no.2 has filed suit for recovery of possession on the basis of title and present petitioner is defendant no.7 in it. It is contention of the respondent no.2 that part of suit property is purchased by defendant no.7. That suit is made time bound by this Court. In that suit, the present respondent no.1 filed an application under Order 1 Rule 10 of the Civil Procedure Code contending that the property being claimed by defendant no.7 is 2 wp1301.11 allotted to him by Municipal Council and hence, adjudication of controversy may affect him. That application has been allowed by trial Court on 20.01.2011. 3. Advocate Mr. Chapalgaonkar contends that the dispute interse between respondent no.1 and present petitioner is totally irrelevant and that application is procured by original plaintiffs only to prolong the suit. 4. Advocate Mr. Patil states that the respondent no.2 is interested in expeditious dismissal of the suit, therefore has also opposed that application filed by the respondent no.1. 5. Advocate Mr. Mundhe on the other hand states that in 1995 Municipal Council has allotted the plot claimed by the defendant no.7 in suit to respondent no.1 and in his absence defendant no.7 encroached upon it. He therefore argues that the present respondent no.1 is the right owner entitled to its possession. He invites attention to the provisions of Order 1 Rule 10 and Order 1 Rule 3 of the Civil Procedure Code to urge that prima facie view has been reached by the trial Court after noticing entitlement of the respondent no.1 and same should not be interfered with by this Court. He relies upon the judgment reported at "2006(Supp.) Bom 3 wp1301.11 C.R. 550"- Sitaram Deorao Pawar and another V/s Rupabai Gundulal Khatri and others delivered by me at Nagpur for the that purpose. 6. Perusal of the reported judgment reveals that it was in suits for specific performance and for setting aside the sale in favour of other parties suppressing the earlier agreement. All suit were consolidated to avoid multiplicity of proceedings. Other respondents who had interest in the properties were allowed to be added as parties. This Court found that consolidation as ordered was correct and looking to the facts, addition of parties was also found necessary to avoid multiplicity of proceedings and to settle the controversy once for all. 7. Here, the present respondent no.1 is not in possession of the property which he is claiming. Admittedly, the petitioner (defendant no.7) is in possession thereof. Hence, by adding him as party, the trial Court can not be said to be either avoiding multiplicity of proceedings or then advancing the interest of justice. 8. During the hearing, it has been pointed out by learned Counsel for petitioner that the present respondent no.1 has already filed Civil suit on or about 8th March, 2011 for recovery of 4 wp1301.11 possession against him vide Special Suit No. 19 of 2011. He has also produced certified copy of that suit for perusal of this Court. The petitioner to place photostat copy of that certified copy on record. 9. It is therefore apparent that the impugned order passed below Exhibit-209 by trial Court is unsustainable. Same is accordingly quashed and set aside. Application filed by the respondent no.1 under Order 1 Rule 10 of Civil Procedure Code is dismissed. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp1301.11