1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO.5340 OF 2008. Hemant Bhiwaji Raut and anr. ..vs.. Prakash Pilaji Thakre and others. =--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. Mr.Muley, Adv. for the petitioner. Mr.Khalid Ansari Adv. for res.no.1 to 3. CORAM: C.L.PANGARKAR,J. DATE : 11th June, 2009. 1. This writ petition has been filed challenging the order passed by the Civil Judge (Sr.Dn.) whereby he allowed an application under order 1 Rule 10 of C.P.C. adding the present petitioners as defendants in the suit. 2. Respondent nos.1 to 3 have filed a civil suit for specific performance of contract in respect of field S.No.131/A of mauza Pipla. It is the contention of the present respondent nos.1 to 3 that respondent nos.4 to 7 had entered into a contract of sale of entire field S.No.131-A 2 admeasuring 2.29 hectares. In the said suit it was contended by respondent nos.1 to 3 that the area of 1.66 ares is excluded because of the fact that the said land has been acquired by the N.I.T. Respondent nos.1 to 3 therefore sought a decree for specific performance of contract excluding the area of 1.66 ares from survey No.131/A. The plaintiffs i.e. respondent nos.1 to 3 have come to know that respondent nos.4 to 7 have in fact sold that 1.66 ares of land to the present petitioners. Respondent nos. 1 to 3 therefore sought to add the present petitioners who are the purchasers of the land admeasuring 1.66 ares. 4. The learned counsel for the petitioners submits that since respondent nos.1 to 3 are now seeking specific performance of contract only in respect of 0.66 ares of land, which is not purchased by the present petitioners there was no need to add the present petitioners as party to the suit. He further submits that the land which is purchased by them is not at all the subject matter of the suit . In the circumstances, there was no need to add them as party to the suit. 3 4. The learned counsel for the respondent nos.1 to 3, however, submits that he has in fact filed two applications before the trial court; one was in respect of the amendment to the plaint and other was an application under Order 1 Rule 10 of C.P.C. Learned counsel for the respondent nos.1 to 3 submits that in the said amendment application, respondent nos. 1 to 3 have sought to add land purchased by the present petitioners as a land which is subject matter of the agreement and therefore he has along with that application filed this application under Order 1 Rule 10 of C.P.C. for addition of the present petitioners. It appears to me that the learned judge of the trial court in fact, therefore, should have decided an application for amendment first instead of deciding the application under Order 1 Rule 10 of C.P.C. If at all the court finds that the said amendment cannot be allowed then there was no question of adding of the present petitioners to the suit. In the circumstances, I find that the following order would meet the ends of justice. The petition is allowed. 4 The order passed by the leaned judge of the trial court on an application under Order 1 Rule 10 is set aside. Instead it is directed that the learned Judge of the trial court shall first decide an application for amendment. If the learned judge is pleased to allow the said application then he shall consider to decide the application under Order 1 Rule 10 afresh in accordance with the provisions of law. The learned judge shall not be influenced by any of the observations made by this court in this order. Both these application be decided within period of two months positively. If the learned judge wants to decide both the applications simultaneously, he may do so. Petition allowed. No order as to costs. JUDGE. chute 5