 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH, NAGPUR. WRIT PETITION NO.602 OF 2008. Rajkumar S/o.Govindram Panjwani, aged about 42 years, Occupation : Agriculturist, Resident of Shri Krishna Apartment, Jaripatka, Nagpur. .... APPLICANT . // VERSUS // 1. Smt. Devkabai Wd/o. Rajeramji Raut, Aged about 60 years, Occu.: Household, 2. Shri Narayan S/o. Rajeramji Raut, aged about 34 years, Occu. : Business, 3. Shri Arun S/o. Rajeramji Raut, aged about 29 years, Occu.: Business, 4. Ku. Jyoti D/o. Rajeramji Raut, aged about 24 years, Occu.: Household, All C/o. Maa Kirana Stores, Godhani Road, Godhani (Railway), Godhani, Nagpur. 5. Smt. Ashabai W/o. Shrawanji Dehankar, aged about 40 years, Occu.: Household, R/o. Post Kalambhi, Taluka Kalmeshwar, 6. Smt. Vandanabai W/o. Nathhuji Landage, aged about 37 years, Occu.: Household, R/o. Post Pipla-3, Taluka Kalmeshwar, 7. Shri Dushannt S/o. Manohar Saoji, aged about 28 years, Occu.: Business, R/o. Gandhi Chowk, Sadar, Nagpur. .... RESPONDENTS. ----------------------------------------------------------------------------------------------- Shri D.N.Dani, Advocate for the Petitioner. Shri P.S.Khubalkar, Advocate for Respondent No.7. -----------------------------------------------------------------------------------------------  CORAM: R.C.CHAVAN, J. DATED : JULY 31, 2008. ORAL JUDGMENT : 1. Rule. By consent, made returnable forthwith. 2. Aggrieved by the order passed by learned 4th Joint Civil Judge Senior Division, Nagpur on Application Exh.65, permitting impleadment of respondent No.7 herein, the plaintiff has filed this petition. Respondent No.7 approached the trial Court with a plea that he held an agreement of sale prior in point of time to that on the basis of which the plaintiff had filed suit against the respondents No.1 to 6. This application was opposed by the petitioner/ original plaintiff contending that this agreement has no bearing on the subject matter of dispute. The learned trial Judge held that in the facts and circumstances of the case and in order to resolve controversy between the parties, it is necessary to implead respondent No.7 in the suit. 3. I have heard Shri Dani, learned counsel for the petitioner and Shri Khubalkar, learned counsel for the contesting respondent No.7.  4. The learned counsel for the petitioner submitted that joinder of respondent No.7 to a suit for specific performance based on agreement between the plaintiff and respondent No.6 would unnecessarily enlarge the scope of trial and create avoidable complications. Relying on the judgment of the Supreme Court in Anil Kumar Singh Vs. Shivnath Mishra, reported at (1995) 3 SCC 147, the learned counsel submitted that respondent No.7 is neither necessary nor proper party for effective resolution of dispute regarding the agreement between plaintiff and respondents No.1 to 3. In that case, the suit had been filed for specific performance of contract of sale by one Daulat Singh. The petitioner was legal representative of Daulat Singh. He filed an application seeking leave to amend the plaint by impleading the respondent as party defendant in the suit, alleging that the respondent has secured interest as co-owner in the land by operation of a decree. The Court observed in paragraph 5 of the judgment as under : “5. In this case, since the suit is based on agreement of sale said to have been executed by Mishra, the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit.”  5. Again in paragraph 9, the Court observed that since the respondent was not party to the agreement of sale, it could not be said that without his presence the dispute as to specific performance cannot be determined and, therefore, he was not a necessary party. The Court concluded that the respondent was neither necessary nor proper party for adjudication of the dispute in the said suit and dismissed the S.L.P. 6. Shri Khubalkar, learned counsel for respondent No.7, placed for my perusal a judgment of the Supreme Court in Sumatibai Vs. Paras Finance Co., reported at (2007) 10 SCC 82. In paragraph 14 of the judgment the Court observed as under : “14. In view of the aforesaid decisions we are of the opinion that Kasturi case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.” 7. It must be realised that significant observation in paragraph 14 is that “A”, against whom decree of specific performance had been sought,  would have no title in the property and such lack of title would result in requirement for “C” to file a suit for nullifying the decree. These observations came in the context of following facts recounted in paragraph 4 of the judgment : “4. The appellants are the legal representatives of late Kapoor Chand. A suit was filed by the respondent herein against Kapoor Chand for specific performance of a contract for sale. It was alleged that Kapoor Chand had entered into an agreement to sell the property in dispute to the respondent-plaintiff, M/s. Paras Finance Co. In that agreement Kapoor Chand stated that the property in dispute was his self-acquired property. During the pendency of the suit Kapoor Chand died and his wife, sons, etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC praying, inter alia, that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial court rejected this application against which a revision was filed by the appellant which was also dismissed by the High Court. Hence this appeal by special leave.” 8. In paragraph 7 the Court noted that there was a registered Will Deed dated 12.08.1960 in respect of the shop in dispute and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj and in this context, the Court observed that the sale would show that the purchaser was not Kapoor Chand alone, but also his sons as co- owners. Observations in paragraph 14 have to be read in this factual  context which is altogether different from the dispute, which is subject matter of the present petition. Therefore, judgment in Anil Kumar Singh Vs. Shivnath, on which the learned counsel for the petitioner placed reliance, is applicable rather than the observations in Sumatibai Vs. Paras Finance, on which the learned counsel for respondent No.7 placed reliance. 9. Presuming for a while that respondent No.7 is necessary party it is for the plaintiff to decide whether he would suffered decree which cannot be ultimately executed or suffer dismissal of the suit for non- joinder of necessary party, and since the petitioner/ plaintiff has exercised his choice, respondent No.7 need not have any grievance. The petition is, therefore, allowed. The impugned order below Exh.65 in Special Civil Suit No.232 of 2005 is quashed and set aside. 10. Rule is made absolute in the above terms. Costs as in the cause. JUDGE RR..