1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.5200/2008 Dattatraya K. Pitalle and ano..vs..Manohar K. Vyawhare & 6 ors. ---------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Shri R. L. Khapre, Advocate for petitioners. Shri Anand Parchure, Advocate for respondent no.1. CORAM : B. P. DHARMADHIKARI, J. Dated : 10th December, 2008. Advocate Khapre for the petitioners states that no relief is claimed against respondent Nos. 2 to 7 in the present writ petition. In these circumstances, their names allowed to be deleted at the risk of petitioner. The necessary amendment be carried out immediately. The court below has by an impugned order dated 14/11/2008 deleted the names of present petitioners from the array of parties as the plaintiffs. Advocate Khapre states that the suit for specific performance was filed by the registered partnership firm by name Pariwar Real Estate Firm and after the death of the person filing the suit on behalf of partnership firm, her legal heirs-present petitioners were brought on record as plaintiffs no. 1-A and 1-B. He further states that the present respondent No.1 was also brought on record, as his application 2 under Order 1 Rule 10 of Civil Procedure Code was allowed by the trial Court in that suit by impugned order dated 10/6/2005. He contends that as the Firm has been dissolved after the death of partner through whom the suit was filed and therefore, the suit needs to be prosecuted by legal heirs of deceased partner. The petitioners no. 1 & 2 needs to be maintained on record along with respondent no.1 as plaintiffs no. 1-A,1-B and No.2. He further states that the controversy inter-se between the respondent no.1 and the present petitioners can be adjudicated in separate suit. Advocate Parchure points out that the contract for sale was made by Firm and after the death of partner, the present respondent no.1, also a partner, has been rightly brought on record and names of legal heirs of deceased person inadvertently added and have been correctly deleted. He states that respondent no.1 is only entitled to prosecute the suit. However, by way abundant precaution, he states that if this Court is inclined to interfere in writ jurisdiction, the controversy inter-se between the parties should also be decided expeditiously because otherwise the suit for specific performance cannot be considered as no effective decree can till then be passed in it. After hearing the parties, I am satisfied that as the Firm has been dissolved due to the death of any one of the partner, the suit filed on behalf of the Firm, needs to be prosecuted further by legal heirs of deceased partner i.e petitioner and respondent no.1 as plaintiff along with them. The 3 order of trial Court dated 14/11/2008 directing deletion of names of petitioners therefore, cannot be sustained and the same is hereby quashed and set aside. The suit needs to be prosecuted further by the petitioners and respondent no.1 together. The conflict inter-se between them i. e. entitlement of any one of them to have sale-deed executed in his favour, if Special Civil Suit No.681/1998 is decreed, does not fall as controversy at this stage, atleast before this Court. The contention of Advocate Khapre that the controversy should be decided in separate suit cannot be accepted because it will leave to multiplicity of litigation and till identity of the person in whose favour sale-deed is to be executed is ascertained, no effective decree can be passed in Special Civil Suit No. 681/1998. In these circumstances, it is made clear that the controversy inter-se between the petitioners and respondent no.1 (all plaintiffs in Spl. Civil Suit No.681/98) also needs to be gone into in Special Civil Suit No. 681/1998 itself. Subject to this clarification, the order dated 14/11/2008 is hereby quashed and set aside. The petitioners are restored as plaintiff nos. 1-A and 1-B in suit and the present respondent no.1 as plaintiff no.2. At this stage, Advocate Parchure has pointed out that respondent no.1 has already filed Regular Civil Suit No. 626/1998 for appropriate declaration and injunction in relation to other properties against the present legal heirs. He 4 states that the present controversy inter-se between them also needs to be gone into in that suit and the suit needs to be tried with Special Civil Suit No. 681/1998. Advocate Khapre has no objection. In these circumstances, both the suits are clubbed together for their further adjudication. The Office of the Principal District and Sessions Judge Nagpur to see that both the suits are listed before the same Judge for their further consideration. Rule Accordingly. JUDGE Andurkar.