1 Wp no.1116/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1116 of 2010 Ratrani Waman Choudhary & ors. ... Petitioners versus Dattatraya Dagdu Gadekar & ors. ... Respondents ... Mr. Nitin P. Deshpande for the petitioner. Ms.Aruna Ghadge for respondent nos.1, 2, 5, 6, 9 and 11. Mr.Dilip Bodake for respondent no.4. CORAM : D.G. KARNIK, J. DATED : 21st July 2010 P.C. 1. The petitioners who are third parties to the suit challenge the order dated 7 December 2009 passed by the Civil Judge, Junior Division, Daund rejecting their application for being joined as parties to the suit. Dattatraya (respondent no.1) herein filed a suit for partition of the joint family property. He joined the widow, son and grand-son of his deceased brother Pandurang as party defendants to the suit. 2. The present applicants claim to be the illegitimate children of Pandurang. They made an application that they should be joined as parties to the suit as they have a share in the property. The application 2 Wp no.1116/10 was opposed. In particulars, the widow, son and grand son of Pandurang contested the application by denying the status of applicants as illegitimate children of Pandurang. After hearing the parties, the trial Court rejected the application. Aggrieved applicants have filed the writ petition. 3. Before me, learned counsel for the contesting respondent i.e. son of Pandurang repeated the contention that petitioners are not the illegitimate children of Pandurang and therefore they are not necessary parties. In the alternative, he submitted that assuming that they are the illegitimate children of the Pandurang and have a share in the property, if the plaintiff does not join them as parties, the suit would fail for not joining of the necessary parties. The contesting defendant has an accrued right to claim for dismissal of a suit on the ground of non joinder of necessary parties. That right which has accrued to him cannot be taken away by joining the present petitioners as parties especially when the plaintiff has not made the application for joining them as parties. The submission deserves to be accepted. If the present applicants are not the illegitimate children of Pandurang as alleged, they have no right to be joined as party. If they are illegitimate children and they have a share than by joining them the right for dismissal of the suit for non-joinder of necessary parties which has accrued to the contesting defendant would be taken away which cannot be done. Hence, writ petition is rejected summarily. (D.G. KARNIK,J.)