1 wp9514.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 9514 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. Hemant Surve, Advocate for the petitioner. Mr. M.A. Deshpande, Advocate for respondent no.1. Mr. M.M. Patil (Beedkar), Advocate for respondent no.2. 1. Heard Advocates Mr. Hemant Surve for petitioner, Mr. M.A. Deshpande for respondent no.1 and Mr. M.M. Patil (Beedkar) for respondent no.2. 2. By placing reliance upon the Judgment of the Hon'ble Apex Court reported at "2010(5) AIR Bom. R. 63" (Mumbai International Airport Pvt. Ltd., V/s Regency Convention Centre & Hotels Pvt. Ltd., and others), particularly paragraph no. 12 thereof, Advocate Mr. Surve contends that no relief has been claimed against the respondent no.2 and suit can be adjudicated and binding order can be passed without presence of the respondent no.2. The trial Court has overlooked the nature of lis presented to it and arbitrarily permitted respondent no.2 to interfere in the matter. 2 wp9514.10 2. Advocate Mr. Deshpande as well as Mr. Patil, support the impugned order. They contend that in suit, injunction sought is about the portion of public road and the respondent no.1 has already given notice to petitioner-plaintiff in that respect. 3. Perusal of the reported judgment (supra) paragraph no.12 reveals that under Order 1, Rule 10(2) of the Civil Procedure Code, Court will exercise its discretion according to reason and fair play and not according to whims and caprice. Perusal of the impugned order reveals that the trial Court has noted the controversy. The respondent no.2 is neighbour of the petitioner and their properties are separated by internal public road of 16 ft. width. The respondent no.2 has contended that encroachment is on the public road and as a neighbour, he has interest in the matter. These aspects are looked into by the trial Court in the light of the precedents cited before it and it has reached finding that for the determination of real question of controversy and for effective adjudication presence of respondent no.2 is necessary. It therefore directed the petitioner to add the respondent no.2 as defendant. Its consideration also shows that name of the defendant already appears in certain portions of the plaint. 3. All relevant aspects are thus looked into and as I 3 wp9514.10 do not notice any jurisdictional error or perversity, the Petition is not therefore entertained. (B.P. DHARMADHIKARI) JUDGE. 10.02.2011 gas/wp9514.10