1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.417 OF 2010 SUDHAKAR GOVIND MOHITE AND ANR ...PETITIONERS. V/S SHIVAJI GOVIND MOHITE AND ORS ...RESPONDENTS. --- Shri C.R. Deshpande, Advocate for the petitioners. --- CORAM : S. B. DESHMUKH, J. DATE : 4TH FEBRUARY, 2010. PER COURT :- 1. Heard learned counsel Mr. C.R. Deshpande for the petitioners. 2. These petitioners are third party applicants, who had moved before learned Civil Judge J.D., Latur by filing an application Exh.43 in RCS No.04/2007. Counsel for the petitioners point out copy of the application annexure ‘F’. He submitted that, there are four brothers. Shivaji is one of them. Shivaji is the plaintiff in RCS No.4/2007. Respondent No.1 Shivaji, has thus filed RCS No.4/2007 in the Court of learned Civil Judge (J.D.), Latur. Copy of plaint annexure ‘A’ is on record. He points out that in this suit, filed by respondent No.1, Shivaji has impleaded legal heirs of deceased Padmakar Mohite, his deceased brother. They are respondents No. 2 to 6 in this writ petition. In short, RCS No.4/2007 is filed by one Shivaji, against legal heirs of deceased Padmakar who are defendants in the suit and respondents in this writ petition. From the copy of the plaint, it appears that it is a suit for perpetual injunction coupled with relief of declaration. Land gat No.7 admeasuring 1 H 73 R 2 from southern side is subject matter of this suit. Prayer clause of plaint shows that decree of perpetual injunction is sought against the defendants in the suit pertaining to suit property. Prayer clause (2) further shows that declaration that respondent No. 1 original plaintiff is owner of 87 R from northern side of suit property is sought. Further declaration appears to have been sought by the respondent No.1-plaintiff that the illegal act of defendants in the suit against right, title interest of the plaintiff is illegal, ultraviours to statute, unconstitutional. Suit indisputably is filed on January 2, 2007. In this suit, the defendants/legal heirs of Padmakar entered appearance, filed written statement. Copy is on record Exh.’B’. Counsel for the petitioner from paragraph No.1 points out averment made “there are two other real brothers of the plaintiff and husband of defendant No.1 by name Sudakar Govindrao Mohite and Madhukar Govindrao Mohite and four real brothers were forming a joint family. Counsel for the petitioner took me to annexure ‘C’. It is a copy of RCS No. 617/2006 filed by the respondent No.1 Shivaji, who appears to be plaintiff in that suit in the court of learned Civil Judge S.D., Latur. There, in that suit, there are six defendants i.e. branch of another brother Sudhakar. That suit is also for injunction and declaration. In that suit, two agricultural lands i.e. gat No.7 admeasuring 1 H 73 Aars and land gat No.6 admeasuring 1 H 80 Aar are subject matter and/or suit properties. From the copy of the plaint of Rcs No.617/2006, it reveals that decree for perpetual injunction against the defendants in that suit with declaration that acts on the part of the defendants that suit is contrary to right, title and interest of the plaintiff. This suit was filed on September 22, 2006. After pointing out these two plaints, counsel for the petitioners also took me to annexure ‘D’ copy of the written statement filed in RCS No.617/2006, by the defendants. 3 3. After pointing out two pending suits filed by respondent No.1, Shivaji against the branch of one brother Sudhakar and legal heirs of another deceased brother Padmakar, counsel for the petitioners has invited my attention to exhibit E copy of the judgment delivered by Civil Court in RCS No.716/2006. He points out that said suit was filed by the mother of respondent No.1 and respondent No.1 Shivaji along with two other brothers were party defendants. This suit has been decided by the Civil Court by the judgment and decree passed on August 27, 2008. Counsel for the petitioners also read paragraph No.4 of this judgment, but then I am not reproducing the material, for the simple reason that I am not hearing the appeal against against that judgment and decree, but then I have noticed the fact that mother of respondent No.1 had filed suit, which has been decided by the court and that judgment is on record. 4. With the assistance of counsel for the petitioners, I have seen operative part of the judgment delivered by the trial Court in RCS No.617/2006 dated August 27, 2008. 5. On the ground of this facts and on pleadings, the application filed by the present petitioners in RCS No.4/2007 has been pointed out to me. Mr. Deshpande, learned counsel for the petitioners took me to the order passed by the trial court, paragraph No.4, 6 and 7. According to him, observation of the trial court in paragraph No.6 that the person who arrayed as defendant in RCS No.617/2006, have filed written statement in present suit i.e. RCS No.4/2007 and they have raised same defence is also pointed out. He expressed apprehension that if parties to RCS No.4/2007 i.e plaintiff and defendants settled the matter amicably and gets decree in 4 that circumstance, present applicants/petitioners would be put to prejudice and/or likely to cause irreparable loss. On this ground, according to counsel Mr. Deshpande order impugned is illegal and required to be quashed and set aside. 6. Litigation amongst the members of the joint family is not a strange phenomenon to the Civil Courts. Trial court, in its order more specifically at paragraph No.6 noticed relevant facts i.e. who are party to the suit, on which date suits were filed etc. Important is a matter of Order I Rule 10 (2) of Code of Civil Procedure. Test laid down is, as to whether party seeking implement is a necessary party meaning thereby, in the absence of such party whether suit can or cannot be decided by the Court. Other test is party seeking implement, whether is proper party. With these two tests, it is a discretion vested with the Court at first instance to be exercised on sound judicial principles. The court from the order, it appears that, was aware of these provisions laid down under Order 1 Rule 10 (2) of the Code of Civil Procedure. Trial court referred even all proceedings, recorded a finding that present petitioners are neither necessary party, nor proper parties. 7. I have given anxious consideration to the submission of the counsel. I have considered order passed by the trial Court. In my view, no case for exercise of extra ordinary jurisdiction is established. 8. Writ petition stands dismissed in limine. No order as to costs. ( S. B. DESHMUKH ) JUDGE. aaa/417.10 ***