1 WP-3862-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3862 OF 2011 Shivaji Yeshwant Mohite ..Petitioner Vs The State of Maharashtra Through the Collector of Sangli and anr. ..Respondents -- Mr.N.J.Patil, for petitioner. Ms.Veena Thadani, for respondents. -- CORAM : R.G.KETKAR, J. DATE : 18 th OCTOBER, 2011 P.C.: Heard Mr.N.J.Patil, learned counsel for the petitioner and Ms.Thadani, learned counsel for respondent nos.1 and 2. 2] The petitioner – original plaintiff has instituted this petition under Article 227 of the Constitution of India challenging the judgment and order dated 10 th March, 2011 passed passed by the learned Civil Judge, Senior Division, Sangli in R.C.S.No.253 of 2009. 2 WP-3862-11.sxw By that order, the learned trial Judge allowed the application dated 14 th July, 2010 made by respondent nos.1 and 2 at exhibit 27 for impleading them as defendants in the suit instituted by the petitioner. The said application was made under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short “C.P.C.”). 3] The petitioner instituted Regular Civil Suit No.253 of 2009 for perpetual injunction restraining the State of Maharashtra or their servants, Officers from keeping in abeyance the renewal of the license CL-3 No.107 (for short “said license”) which is in the name of the petitioner on the basis of false and frivolous complaints of the heirs and legal representatives of deceased Ravindra Hawaldar. The petitioner instituted suit inter alia contending that in the year 1975, the State Government issued said license in favour of Ravindra Shivram Hawaldar for selling country liquor. The petitioner entered into partnership with said Ravindra on 31 st May, 1979 with approval of the Collector, Sangli. Accordingly, requisite entry was made in the said license. It is the case of the petitioner that he has 45% share and said Ravindra had 55% in the license. During the lifetime of said Ravindra, the business was smoothly going on. However, 3 WP-3862-11.sxw Ravindra died on 10 th May, 2006. After the death of Ravinda, his widow Mangal – respondent no.2 herein made an application to the Collector, Sangli in 2006 for deleting the name of the petitioner and for entering the name of respondent no.1 Arun being son of said Ravindra in the license. The Collector, Sangli informed respondent no.2 Mangal on 2 nd December, 2006 that the name of the petitioner cannot be deleted from the license as per the Government Circular dated 20 th August, 1996. The petitioner applied for renewal of the license for the year 2007-2008 to the Collector, Sangli. However, said application was rejected on the ground that the application is not signed by the legal representatives of deceased Ravindra. Aggrieved by this decision, the petitioner preferred appeal before the Commissioner of State Excise Department, Mumbai. Respondent no.2 aggrieved by the communication dated 2 nd December, 2006 of the Collector, preferred appeal before the Commissioner of State Excise Department, Mumbai. Both the appeals were disposed of by the Commissioner on the ground that the dispute is of civil nature and on 7 th May, 2007, directed the Collector, Sangli to hear both sides and make fresh enquiry in that regard. 4 WP-3862-11.sxw 4] As per the decision of the Commissioner, State Excise Department, Mumbai dated 7 th May, 2007, the Collector, Sangli by his order on 3 rd July, 2007 decided the matter holding that the dispute about partnership can be resolved in the Civil Court and further ordered renewal of license in favour of the petitioner. Accordingly, the license was renewed. Aggrieved by the decision of the Collector, respondent no.2 Mangal preferred appeal no.317 of 2007 before the Commissioner. The Commissioner set aside the Collector’s order dated 3 rd July, 2007 and remanded the case for fresh enquiry. On 5 th May, 2008, the Collector, Sangli passed order that so long as the partnership dispute is not resolved in appropriate Civil Court, the license should be renewed in favour of the petitioner. Pursuant to that order, the petitioner deposited renewal fees and license was renewed. 5] Aggrieved by the decision of the Collector dated 5 th May, 2008, respondent nos.1 and 2 preferred appeal no.222 of 2009 before the Commissioner, State Excise which is pending. It is in these circumstances, the petitioner instituted suit claiming aforesaid relief. During the pendency of the suit, respondent nos.1 and 2 took out 5 WP-3862-11.sxw application for impleading them as party defendants. The said application was allowed by the impugned order. It is against this order, original plaintiff has preferred this petition. 6] Mr.N.J.Patil, learned counsel for the petitioner contended that the plaintiff is dominus litis and it is for him to decide which persons are to be made parties to the suit. He further submitted that the learned trial Judge by a cryptic order and without assigning any reason, has allowed the application. He submitted that respondent nos.1 and 2 are neither necessary party nor proper party in the suit instituted by him and consequently, the impugned order deserves to be quashed and set aside. 7] On the other hand, Ms.Thadani learned counsel for respondent nos.1 and 2 supported the impugned order and invited my attention to the affidavit in reply filed on their behalf. She submitted that the partnership dated 31 st May, 1979 between the petitioner and deceased Ravindra was approved by the Collector subject to two conditions which are endorsed on the said license by the Collector at the time of adding name of the petitioner on the license. Two 6 WP-3862-11.sxw conditions read as under : “(a) that the original licensee (Mr.Ravindra Hawaldar) would have a larger share in the profits of the firm. (b) the incoming partner would have no right on the licence. In view of this, she submitted that the incoming person will have no right in the license. She further submitted that the license was in the name of Ravindra and respondent nos.1 and 2 are his heirs and legal representatives. Having regard to Section 42(c) of the Indian Partnership Act, on account of death of a partner, partnership stood dissolved by operation of law. She invited my attention to the proceedings before the Collector, Sangli and Commissioner of State Excise. 8] I have considered the rival submission made by learned counsel for the parties. Perusal of the plaint as also prayer clause (a) clearly indicates that the petitioner wants to get his license renewed and while renewal proceedings are going on, the authorities of the 7 WP-3862-11.sxw State Excise should not take cognizance of any complaint made by the legal representatives of deceased Ravindra. Reading the plaint as a whole, in my opinion, the petitioner ought to have impleaded legal representatives of Ravindra. This is particularly when the dispute is going on between the parties before the Collector as also Commissioner of State Excise and it has been held that the dispute between the parties is of civil nature. 9] I, therefore, do not find any substance in the submissions of Mr.Patil that respondent nos.1 and 2 are neither necessary nor proper parties. Mr.Patil further submitted that the learned trial Judge passed a cryptic order and without giving any reason, allowed the application made by respondent nos.1 and 2. The learned trial Judge after perusing the plaint as also documents filed on record by the petitioner as also documents filed on record by respondent nos.1 and 2 herein and came to the conclusion that the application made by respondent nos. 1 and 2 deserves to be allowed. After hearing learned counsel for the petitioner and respondent nos.1 and 2 as also after going through the material on record, I do not find that the learned trial Judge committed error in allowing the application. No 8 WP-3862-11.sxw error of law apparent on the face of record is committed by the learned trial Judge while allowing the application. It also cannot be said that the impugned order suffers from any perversity. No case is made out warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 10] In the result, the petition fails and the same is dismissed. [R.G.KETKAR, J.]