1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4272 OF 2009 Kuber Narasgonda Patil ...Petitioner vs. Yashwant Rajaram Kulkarni (since deceased through his L.Rs) Smt.Ratan Yashwant Kulkarni & Ors. ...Respondents Mr.Rahul Walvekar for the petitioner Mr.C.G.Gavnekar for respondent nos.1B, 1C, 2 and 3 CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. The parties were put to notice that the Petition will be taken up for final disposal at admission stage. The petitioner is the original plaintiff and the respondents are the legal representatives of the original defendant. The petitioner filed a suit against the original defendant for specific performance of the agreement for sale of the share of the defendant in the suit house property. The suit was contested by the original defendant and the decree was passed in favour of the petitioner. An appeal was preferred by the original defendant. During the pendency of the Appeal, the defendant died and hence, the respondents made an application for bringing their names on record of the Appeal as the legal representatives of the deceased defendant-appellant. 2 In the Appeal, the respondent 1B and 1C made an application to allow them to file the written statement to the original suit. The said application was dismissed 2 by the learned District Judge. Thereafter, the respondent nos.1B and 1C filed another application seeking permission to amend the written statement of their deceased father. The said application was also rejected by the Appellate Court. The order of rejection of the said application was challenged by the said two respondents by filing a writ petition in this Court. The writ petition was disposed of by order dated 24 th November 2008 by granting liberty to the said respondents to file a fresh application. Thereafter, a fresh application at Exh.82 was filed by the said respondents praying that they may be impleaded as original defendant nos.2 and 3 to the suit. By the impugned order, the said application has been allowed. 3 The learned counsel for the petitioner has taken me through the impugned order. He submitted that respondents nos.1B and 1C have come on record as the the legal representatives of the appellant-defendant in the pending appeal. He submitted that the said respondents are strangers to the suit agreement. He submitted that the said respondents were neither necessary nor proper parties to the suit. He submitted that on the basis of the liberty granted by this Court, the said respondents could not have been permitted to be impleaded as party defendants in their individual capacity. 4 The learned counsel for the respondents supported the impugned order by inviting my attention to the order dated 24 th November 2008 passed by this Court. He submitted that the Appellate Court has rightly observed that the petitioner is claiming relief against the respondent nos.1B and 1C and that to avoid multiplicity of the proceedings their presence was necessary. He submitted that an application was made by the said 3 respondents on the basis of the liberty granted by this Court and therefore, no interference is called for. 5 I have given careful consideration to the submissions. As pointed out earlier, the respondent nos. 1B and 1C came on record in their capacity as legal representatives of the appellant-original defendant. In the application at Exh.82, it was contended that on birth they have acquired undivided share in the larger property out of which decree has been passed in respect of the 1/4 th share of their deceased defendant. It was contended that their rights will be affected by the decree passed in the suit. Reliance was placed on the liberty granted by this Court. 6 An application was earlier made by the respondent nos.1B and 1C for amendment of the written statement filed by the original defendant. The said application was rejected. In order dated 24 th November 2008, this Court has noted that the respondent nos.1B and 1C could not have amended the written statement in their capacity as heirs of the original defendant. Paragraph 2 of the order reads thus : 2 In view of this, the learned counsel for the petitioner seeks to withdraw the Petition with liberty to file fresh application before the Appellate Court to implead them as defendants in their individual capacity in the suit as well as appeal and to raise this defence. . The Writ Petition stands disposed of with the aforesaid liberty. 4 7 Thus, it is clear that on their own the respondent nos.1B and 1C applied for withdrawal of their petition with liberty to file an application to implead them as party defendants in their individual capacity. Though liberty is granted by this Court to the said respondents, it is obvious that this Court has not considered the merits of the proposed application. Notwithstanding the grant of liberty, the application which may be preferred by the concerned respondents on the basis of the liberty will have to be decided in accordance with law. 8 The decree passed by the trial Court relates to execution of conveyance in respect of the 1/4 th share of the original defendant. The result of the impugned order is that the respondent Nos.1B and 1C have been made parties to the suit for specific performance filed by the petitioner. The said order has been passed in the pending Appeal against the decree. The case will be governed by the decision of the Apex Court in case of Kasturi Vs. Iyyamperumal and others [(2005 6 SCC 733]. The respondent nos.1B and 1C are strangers to the contract and they are not claiming any independent right in respect of the share held by their father. If the said respondents are impleaded as party defendants to the suit, it will enlarge the scope of the proceedings. The issue as to alleged rights claimed by the said respondents cannot be gone into in an Appeal against the decree for specific performance as the said respondents are neither necessary nor proper parties to the suit and Appeal. The learned District Judge was perhaps impressed by the liberty granted by this Court. The observations made by the learned District Judge that to avoid multiplicity of the proceedings, addition of the said respondents is necessary, is completely erroneous and the 5 said observation is made without considering the frame and scope of the suit for specific performance. Hence, impugned order will have to be set aside being illegal. 9 Accordingly, I pass the following order : i) Impugned order dated 23 rd February 2009 is quashed and set aside and the application at Exh.82 made by the respondent nos.1B and 1C stands rejected. No order as to costs. JUDGE