1 W.P. No.2855/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2855 OF 2009 Gangadhar Siddhappa Batkadali .. Petitioner Vs Walsan Kunyakan Nair and anr .. Respondents Mrs P.U.Badadare, for the petitioner. Mr N.V.Bandiwadekar, for respondent no.1. Mr Prashant S Bhavake, for respondent no.2. CORAM : D.B.BHOSALE, J. DATE : 24/09/2010 PC: 1. Heard learned counsel for the parties. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waive service. By consent of learned counsel for the parties, petition is taken up for hearing and final disposal at the admission stage itself. 2.By this petition, the petitioner-plaintiff has impugned the order dated 4.12.2008 passed by the Civil Judge, Jr Dn., Ajara, on the application at Exhibit-28 in Regular Civil Suit No.35 of 2004. T 2 W.P. No.2855/09 The application at Exhibit-28 was filed by respondent no.1, who was the sole defendant in the suit. The suit was filed by the petitioner for recovery of rent and possession of the suit premises. Respondent no.1-original defendant filed application at Exhibit-28 for adding respondent no.2 as party defendant in the suit and that application has been allowed by the impugned order dated 4.12.2008. 3. There is no dispute that respondent no.2, on 3.3.2005 had filed an application under Order 1 rule 10(2) of the Civil Procedure Code for his impleadment in the present suit and that application was rejected vide order dated 20.4.2005. That order was not carried further by respondent no.2. Thereafter, on 26.9.2007 the application at Exhibit-28 was filed by respondent no.1 for the same relief. The suit is filed by the petitioner, as observed earlier for recovery of the rent and possession of the suit premises. The petitioner claims to be the owner of the suit premises. It is also brought on record that there is another suit filed by respondent no.2 against the petitioner-plaintiff for specific performance of an agreement dated 16.11.2000. In that suit, on 13.8.2007, the order of injunction has been passed against the petitioner restraining him from disturbing possession of respondent no.2. From bare perusal of the facts, in 3 W.P. No.2855/09 my opinion, respondent no.2 has absolutely no connection with the instant suit. It is now well settled that unless the third person, who seeks to implead, himself in any litigation, should either prima facie establish that he is a necessary party or proper party and if he fails to do so, his application for impleadment cannot be allowed. The Supreme Court recently in Mumbai International Airport (P) LOtd Vs Regency Convention Centre and Hotel (P) Ltd, (2010) 7 SCC 407 while interpreting the term 'necessary party" and "proper party", has observed thus :- “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” 4.Having regard to the principles laid down by the Supreme Court in the aforesaid judgment,in my opinion, existence of R. No.2 in the instant suit as party-deft. is neither necessary nor 4 W.P. No.2855/09 proper. The present suit is filed by the plaintiff against the tenant for recovery of arrears of rent and for possession. Whatever may be the dispute between respondent no.2 and the petitioner, that will be taken care of in the suit filed by respondent no.2 for specific performance of the agreement executed between the two. In the circumstances, the impugned order deserves to be set aside. Order accordingly. Rule is made in the aforesaid terms. (D. B. Bhosale, J.)