{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7271 OF 2008 1. Shaikh Rafique s/o Shaikh Nazir R/o. Gut No.685, Ellora Caves, Tq-Khultabad, Dist-Aurangabad 2. Roopchand Chatrulal Rathod R/o Manzoorpura, Aurangabad PETITIONERS VERSUS 1. Sunil Ravi Vadan Shah R/o Ellora, Tq-Khultabad Dist-Aurangabad 2. Surabhi Milind Joshi R/o 4, Devendra Apartment, Lane No.1, Dharurkar Colony, Kothrud, Pune 3. Imran Khan s/o Mohd Khan Pathan R/o Ellora, Tq-Khultabad, Dist-Aurangabad RESPONDENTS ....... Mr.D.S.Bharuka, Advocate for petitioners Mr.A.M.Karad, Advocate for respondents No.1 and 2 ....... [CORAM : A.V.POTDAR, J.] DATE : 17th June 2009 PER COURT: {2} 1. By the present writ petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 12.08.2008 passed below Exhibit-57 in RCS No.678/2006 by the 10th Joint Civil Judge, Junior Division, Aurangabad. 2. Heard respective counsel for the parties. 3. By application Exhibit-57, the petitioners have prayed to implead them as party to the suit under Order 1 Rule 10 of the Civil Procedure Code, as they have acquired the property under registered sale deed dated 14.08.2006 and therefore, they are necessary parties to the suit. 4. Learned counsel for respondents No.1 and 2 has placed a copy of common order dated 30.08.2007 passed in Writ petitions No.2275/2007 and 2276/2007 on record. The petitioners in writ petition No.2275/2007 are the petitioners in this petition and the petitioner in writ petition No.2276/2007 is the respondent No.3, who is original plaintiff No.3 in the said suit. It is pertinent to note that though these petitioners have earlier filed writ petition, yet there is no reference of the same in the application Exhibit-57 filed by them to implead them as party. It appears that the trial court in the impugned order has given reference of this litigation by way of writ petitions as well as SLP preferred by the very petitioners and the third respondent, before the Apex Court, which {3} came to be dismissed in liminie at the stage of admission. Therefore, this writ petition appears to be a vexatious litigation. 5. It is also observed in para 4 of the impugned order that on the basis of title acquired by the petitioners, they have filed civil suit No.759/2006, which fact also does not found mention in the application Exhibit-57. Thus, it is clear that the application suffers from suppression of material facts. Apart from it what is the scope of Order 1 Rule 10 is required to be considered. The suit is originally filed for simplicitor injunction and if it is so then the cause of action is a cause of action to the person claiming legal right over the property at the relevant time. 6. Though the application Exhibit-57 is moved under Order 1 Rule 10 of the Civil Procedure Code, yet at the same time the Court is required to consider various provisions of law. Order 22 of Civil Procedure Code speaks for the rights of the parties after death, marriage and insolvency. Sub Rule 10 of Order 22 speaks about procedure in case of assignment before final order in the suit. For clarity, Sub rule 10 of Order 22 is required to be reproduced herein, which reads as follows- “10. Procedure in case of assignment before final order in suit – (1) In other cases of an assignment, creation or devolution of nay interest during the pendency of a suit, the suit may, by leave of the Court, be continued {4} by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1) 10-A. Duty of pleader to communicate to Court death of a party – Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.” 7. Thus, on bare reading of Order 22 Rule 10, in case of assignment of rights the assignor can step into the shoes of the assignee in case right to sue survives. In case of suit for perpetual injunction, no doubt it creates right in the assignor from the assignee, however so far as cause of action of the suit is not the same on the basis the suit was filed for perpetual injunction. In the parlance of legal proposition, it is necessary to consider the ruling cited across the bar reported in 2007 (5) Mh.L.J. 701 in the matter of “Rashtriya Mill Mazdoor Sangh V/s Empress Mills, Nagpur” wherein it is observed that if the person has a right {5} or interest in the subject matter lis which is being tried, such person is a necessary party. Here, it is to be noted that the facts, in the judgment reported are that the management of the Empress Mill, Nagpur was assigned / transferred during the pendecy of the litigation and in that case the Union of the Employees have got every right to protect their interest. They are necessary parties, even after assignment of the rights of the management in favour of the assignor. This ruling will not be applicable to the present case where the suit is for perpetual injunction. Remedy of injunction is always available to the person whose legal rights are infringed and on that apprehension there shall be a cause of action to the prosecution to the suit, which rule will not be applicable in the case the petitioners as they have already filed separate civil suit, which is pending. In the premises, the submissions, advanced across the bar on behalf of the petitioners are devoid of any merits and this Court does not found any fault with the order passed by the trial Court. Therefore, the writ petition is to be dismissed in liminie with compensatory costs. Accordingly, the writ petition is dismissed in limine with compensatory costs in the sum of Rs. 5000/-. This order is the condition precedent. 8. In writ petitions No.2275/2007 and 2276/2007 directions were given for disposal of RCS No.678/2006 and 759/2006 expeditiously and as far as possible on or before 31 st Macy, 2008. It appears that the said direction is not complied with by the trial court and the suits are still pending. In the premise, {6} the trial court is directed to dispose of both the suits within a period of 3 months and in any case on or before 16.10.2009. This order is to be followed punctually and scrupulously. [A.V.POTDAR, J.] drp/wp7271-08