1 WP-5281.10.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5281 OF 2010 Shri Deepak Madhavrao Mankar : Petitioner versus Shri Shantilal Rupchand Oswal and ors. : Respondents. Mr.R S Apte, senior advocate with Mr.Drupad Patil for the Petitioner. Mr. R D Soni i/by M/s. Ram & Co. for the Respondent Nos.10,11 and 12. Mr. Pankaj Das for the Respondent No.1. Mr. A P Kulkarni for Respondent No.13. CORAM : R M SAVANT, J. DATE : 22nd November 2011 P.C. 1 The above Petition takes exception to the order dated 6/5/2010 passed by the learned 6th Joint Civil Judge, Senior Division, Pune by which order the Application under Rule 10 of Order 1 of the Code of Civil Procedure filed by the Petitioner herein came to be rejected. 2 Impleadment was sought in a suit being Special Civil Suit No. 1806/2009 filed by the Respondents herein against one Surekha Murkute and others for specific performance of the agreement as evidenced by Isar Pawati dated 1/1/2003 and the Confirmation Deed. The suit properties are the lands bearing Survey Nos.218/3, 221/3B, 222/1B, 223/1, 224/2 and 228/2 situated at Mouje Baner, District Pune. It is the case of the Plaintiffs in the said suit that there is a concluded contract between the Plaintiffs and the Defendant on the 2 WP-5281.10.sxw basis of which the Plaintiffs are seeking specific performance. In the said suit some other reliefs have also been sought. 3 The impugned order has been passed on the Application filed by the Petitioner herein for impleadment which was filed, relying upon the registered Development Agreement and Power of Attorney dated 14/1/2008 executed by the Defendant in the said suit in favour of the Petitioner. The said Application has been rejected for two fold reasons viz. that the Isar Pawati dated 1/1/2003 as well as the Confirmation Deed dated 7/9/2006 being prior in point of time would have precedence over the subsequent documents dated 14/1/2008. The said application has also been rejected on the ground that the same has been filed belatedly, and that in stead of filing a separate suit, the Petitioner has sought his impleadment in the suit filed by the Respondents herein. 4 The learned senior counsel for the Petitioner Shri Apte would contend that since the documents executed in favour of the Petitioner have been so executed prior to filing of the suit, the Petitioner ought to have joined as a party to the said suit. The learned senior counsel for the Petitioner relies upon the judgment of the Apex Court reported in (2007) 10 SCC 88 in the matter of M.P. State Agro Industries Development Corpn. Ltd and anr. v/s. Jahan Khan wherein it has been held by the Apex Court that if a party can show a fair semblance of title or interest he can certainly file an application for 3 WP-5281.10.sxw impleadment in a suit for specific performance between A & B. In the facts of the present case wherein the applicant seeks to assert his right on the basis of registered Development Agreement and Power of Attorney, whereas the original Plaintiffs seek specific performance of the concluded agreement as evidenced by the Isar Pawati and Confirmation Deed. In my view, if the impleadment of the Respondent No.10 is allowed, it would lead to misjoinder of causes of action which have no connection with each other to be incorporated in one suit. This would lead to complication in the adjudication of the said suit as in one sense the rights of the Petitioner, at this stage can be said to be inchoate as there is no sale deed in his favour. Having regard to the well settled position as enunciated by the Apex Court in the catena of judgments that the scope of a suit for specific performance should not be enlarged to the adjudication of the rights of a third party, in my view, there is no error of jurisdiction or any irregularity committed by the trial Court in rejecting the application filed by the Petitioner for impleadment. In that view of the matter, no case for interdiction is made out. 5 It is made clear that it would be open for the Petitioner to assert his rights based on the said documents in his favour in an independent suit. If such a suit is filed, needless to state that the same would be decided on its own merits and in accordance with law. In the eventuality of such a suit being filed, the Petitioner can move an application for clubbing the said suit together with the Special Civil Suit No.1806/2009. The said application would then be 4 WP-5281.10.sxw considered by the concerned Court on the touchstone of the principles applicable for clubbing. With the aforesaid observations, the above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]