( 1 ) wp572.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 572 OF 2011 Bhagwandas Aildas Kalda .. Petitioner Died. By LRs. 1. Kishanlal s/o. Bhagwandas Kalda, Age. 48 years, Occ. Business, R/o. Kalda Corner, Chetannagar Road, Aurangabad. 2. Kanhaiyalal s/o. Bhagwandas Kalda, Age. 46 years, Occ. Business, R/o. Kalda Corner, Chetannagar Road, Aurangabad. 3. Shatrughna s/o. Bhagwandas Kalda, Age. 44 years, Occ. Business, R/o. Kalda Coner, Chetannagar Road, Aurangabad. Versus 1. Chainmal Pannalal Kothari .. Respondents Age. 90 years, occ. Business, R/o. Kushal Nagar, Aurangabad. 2. Kushal Company, Through its Manager, Chimanlal Pannalal Kothari, Age. 90 years, occ. Business, R/o. Kushal Nagar, Aurangabad. 3. The Aurangabad Municipal Corporation, Aurangabad, Through its Commissioner, At Aurangabad. ( 2 ) wp572.11 4. Nandkumar s/o. Kantilal Patel, Age. 54 years, Occ. Business, R/o. Brindavan Swarn Bungalow, Opp. IT Office, Pune, Karve Road, Pune. 5. Chandakant s/o. Bhagwandas Shah Age. 52 years, Occ. Service, R/o. Anand Niwas, Opp. Gulza Talkies, Aurangabad. 6. Mrs. Meena w/o. Bhagwandas Loya, Age. 60 years, Occ. Household, R/o. Flat No.6, Achala Apartments, New Usmanpura, Aurangabad. Mr. R.R. Mantri, Advocate for the petitioner. Mr. M.D. Joshi, Advocate for respondent Nos. 1 & 2. Mrs.Manjusha A. Deshpande, Advocate for respondent No.3. Mr. K.U. Nikam, Advocate for respondent Nos. 5 & 6. CORAM : A.V. NIRGUDE, J. DATED : 20.08.2011 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith and by consent of learned Counsel for the parties, taken up for hearing immediately. 2. This petition filed under Articles 226 and 227 of the Constitution of India challenges the legality of the order dated 01.12.2010, passed by the learned 5th Jt. Civil Judge, Senior Division, Aurangabad, on Exh.370, in Special Civil Suit No. 289 of 1989, in which the petitioners are the plaintiffs. ( 3 ) wp572.11 3. The cause of action for plaintiffs’ suit in short was as under :- 4. The plaintiffs said that they acquired the suit property through an agreement for sale. They say that they are in possession of the suit property, but they say that part of the suit property was encroached by the defendants who are respondent Nos.1,2 & 4 and therefore they filed a suit for recovery of possession of encroached area and for injunction etc. This suit, as indicated above, was filed way back in 1989 and unfortunately it is still pending. On 5th November, 2009, respondent Nos.5 & 6 moved application Exh.370 requesting the learned Judge of the Trial Court to make them party defendant under Order 1 Rule 10 of the C.P.C., asserting that their presence is required for effective decision on the questions involved in the suit. It is case of respondent Nos. 5 and 6 that they are original owners of the suit property and that their predecessor in title had agreed to sell suit property to the petitioner/plaintiff. They say that they heard and they have reason to believe that the parties to this suit are making collusive overtures and are likely to obtain certain orders in respect of the suit property, which would adversely affect them. So, they want them to be party to this suit. The question is - Whether their presence is necessary for effective decision on the questions involved in the suit? ( 4 ) wp572.11 The answer is in the NEGATIVE. 5. Order 1 Rule 10 of the C.P.C. reads as under :- “10. Suit in name of wrong plaintiff – (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended. - Where a defendant is added, the plaintiff shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaintiff shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5)Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 6. As the facts of the case clearly suggest, there is no question between existing parties to the suit as to whether respondent Nos.5 and 6’s predecessor in title had or had not agreed to sell the suit property to the petitioner/plaintiff or that whether respondent Nos.5 & 6 ( 5 ) wp572.11 have any concern or right to the suit property. The question involved in this suit is whether there is encroachment etc. and whether the petitioner is/was in possession of the suit property. Such question can be and ought to be decided between the existing parties to the suit. Besides the cause of action for the suit has no concern to the Respondent Nos.5 & 6. Their presence in the suit, thus, is not necessary for effective disposal of the question involved in the suit. Even assuming that there occurred any compromise between the existing parties to the suit the same will not affect the so called title of the respondent Nos.5&6. This apprehension is untenable. The learned Judge did not apply his mind to the pertinent question and unfortunately passed this order. 7. The learned Judge wrongly held in the impugned order that the presence of respondent Nos.5&6 is necessary for deciding the suit on merits. He further held that by adding them as parties to the suit he would try to avoid multiplicity of the proceedings. I am afraid, learned Judge of the Trial Court probably did not contemplate as to what could have been the consequences of rejection of the application made by respondent Nos. 5 and 6. He ought to have realized first that respondent Nos.5&6 had no concern to the question involved in the suit and that if at all they have any concern to the suit ( 6 ) wp572.11 property, they can independently initiate proceedings of their own. If the learned Judge of the Trial Court thought that he could stop respondent Nos.5 & 6 from initiating an independent proceeding by adding them as party to the suit, he was in grave error. Even if respondent Nos.5 & 6 are added to the suit, they would not be in a position to get decree of possession against the plaintiff. The application was made due to misconception of provisions of Order 1 Rule 10 of C.P.C and due to incorrect legal advice. Therefore, the impugned order deserves to be set aside. 8. The writ petition is allowed. The impugned order dated 01.12.2010 passed below Exh.370 in Special Civil Suit No. 289 of 1989 is quashed and set aside. Rule made absolute accordingly. No order as to costs. [A.V. NIRGUDE, J.] snk/2011/AUG11/wp572.11ok