1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 46/2009 (M/s Raviraj Corporation VERSUS The M.S.E.D.C. Ltd. & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri J.T. Gilda, counsel for the petitioner. Shri R.E. Mohrir, counsel for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 17, 2009. By this petition, the petitioner impugns the order passed by the Civil Judge (Senior Division), Khamgaon on 24.10.2008 holding that the petitioner-M/s Raviraj Corporation is a necessary and a proper party. By the impugned order, the trial Court further directed the plaintiff to add the petitioner as defendant no.2 by carrying out an amendment in the plaint. A suit was filed by the respondent Maharashtra State Electricity Board against the respondent no.2-M/s Abdullabhai Fiddali & Sons for grant of a decree for an amount of Rs.4,15,886/-. It 2 was the case of the plaintiff that the respondent no.2 was its consumer and the respondent no.1 had agreed to supply energy to the respondent no.2 on the terms and conditions mentioned in the agreement. The outstanding energy charges against the respondent no.2 were Rs.4,65,886/- and, therefore, the plaintiff sought the said amount with interest @ 18% per annum. During the pendency of the suit, an application was filed by the respondent no.2-original defendant under Order VIII Rule 23 of the Code of Civil Procedure for issuance of notice to the petitioner-Corporation. It was the case of the defendant that an agreement was entered into between the petitioner and the respondent no.2 on 01.11.1993, whereunder the factory owned by the defendant/respondent no.2 was given on lease for a period of two years to the petitioner-Corporation and under the agreement, the Corporation had agreed to 3 pay the liability of the Maharashtra State Electricity Board. The defendant stated that he had also informed about the agreement to the plaintiff. Since the petitioner failed to pay the bill for the relevant period, the defendant/respondent no.2 filed the application under Order VIII Rule 23 of the Code of Civil Procedure as according to the respondent no.2, the petitioner was liable to contribute and indemnify the respondent no.2 under the agreement. Before the trial Court, the plaintiff had opposed the said application. The petitioner opposed the same on the ground that the plaintiff was a Dominus Litis and the petitioner was also not a necessary or a proper party to the suit. According to the petitioner, the claim of the plaintiff was only against the respondent no.2 and in such circumstances in the absence of any agreement between the plaintiff and the petitioner, the application of the respondent no.2 was liable to be rejected. 4 It is submitted on behalf of the petitioner that the trial Court committed a serious error in allowing the application filed by the respondent no.2 by the order dated 24.10.2008. It is the case of the petitioner that the respondent had opposed the prayer made in the application filed by the respondent no.2. It is submitted on behalf of the petitioner that the plaintiff was the Dominus Litis and the trial Court was not justified in allowing the application filed by the respondent no.2 when the plaintiff did not desire to join the petitioner as party defendant to the suit. It is also submitted on behalf of the petitioner by placing reliance on the judgment of the Hon'ble Supreme Court reported in 2009(1) SCC 210 that the supplier cannot file a suit nor initiate revenue recovery proceedings against a purchaser of the premises for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary. It is 5 submitted on behalf of the petitioner that there was no contract between the petitioner and the respondent no.1/plaintiff and, therefore, the application filed by the respondent no.2 was liable to be dismissed. The learned counsel for the petitioner also relied on the judgment reported in AIR 1957 AP 939 to canvass that it was not proper on the part of the trial Court to direct the plaintiff/respondent no.1 to join the petitioner as a party defendant. I have considered the submissions made on behalf of the parties.. the trial Court has considered the fact that the plaintiff is a Dominus Litis and has also considered the provisions of Order VIII of the Code of Civil Procedure to grant the prayer made by the respondent no.2 in the application. It is necessary to note that the plaintiff has not challenged the order dated 24.10.2008, passed by the trial Court and impugned in this petition. It is the petitioner,who has challenged the same and, hence, the submission that 6 the plaintiff is the Dominus Litis and, therefore, the joinder of the petitioner cannot be against the wishes of the plaintiff is not available to the petitioner in this case. The trial Court had rightly relied on the provisions of Order VIII Rule 23 of the Code of Civil Procedure to grant the prayer made by the respondent no.2 in the application. The trial Court rightly took a note of the agreement which was executed between the petitioner and the respondent no.2 on 01.11.1993. The trial Court observed, and rightly so, that the question of admissibility of the agreement dated 01.11.1993 could be considered at a later stage of the proceedings. No fault can be found with the order passed by the trial Court on 24.10.2008 allowing the application filed by the respondent no.2 and directing the respondent no.1/plaintiff to add the petitioner as a party defendant to the suit. 7 The judgments reported in 2009(1) SCC 210 and AIR 1957 AP 939 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. In the result, the petition fails and is dismissed with no order as to costs. JUDGE APTE