*1* 16.wp.9350.09.sxw skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9350 OF 2009 Kanhaiyalal Motilal Talreja ..Petitioner -Versus- Dattatry Kasanrao Badhe & Ors. ..Respondents .......... Mr.P.K.Dhakephalkar i/b Mr.Madhav Jamdar for Petitioner. Mr.G.S.Godbole i/by Ms.Manjiri Parasnis for Respondent Nos.1 and 2. Mr.Sachin Chavan for Respondent No.3. Mr.V.V.Purwant for Respondent No.4. .......... CORAM : B.R. GAVAI, J. DATE : 15TH FEBRUARY, 2011. P.C. 1 The petitioner challenges the order dated 17th January 2009 vide which the application filed by the present petitioner for impleading respondent no.4 herein- as a party defendant in the suit came to be rejected. 2 The petitioner has filed a suit for specific performance being Special Civil Suit No.304 of 1995 against respondent nos.1 to 3. Undisputedly, in *2* 16.wp.9350.09.sxw the said suit, an order of injunction restraining the said respondents/defendants from alienating or disposing of the suit property or creating third party interest has been passed on 12th October 1995. In the intervening period, it appears that the original defendants have executed a power of attorney in favour of respondent no.4 herein. Contending that the said power of attorney was executed in breach of the orders of injunction passed by the learned trial court, an application under the provisions of order 39 Rule 11 of the Code of Civil Procedure came to be filed by the present petitioners. The same was rejected. Being aggrieved thereby, Appeal from Order No.401 of 1995 was filed before this Court. The same was also rejected vide order dated 13th August 2009. 3 In the intervening period, the petitioner has also filed an application below Exh.222 for impleading respondent no.4 as a party defendant. It was contended that, the presence of respondent no.4 is necessary for proper adjudication of the suit and therefore, he should be impleaded as defendant no.4. The said application was rejected. Hence the present petition. 4 Mr.Dhaphalkar, learned counsel appearing on behalf of the petitioners submits that respondent nos.1 and 2 have received a substantial amount in the tune of Rs.35 crores from respondent no.4. He *3* 16.wp.9350.09.sxw submits that in the event, a decree is passed in the suit filed by the present petitioner, the said decree would be inexecutable in the absence of respondent no.4. He submits that though defendant nos. 1 and 2 are denying that they have not breached the order of injunction, as they have not alienated the suit property, he submits that respondent no.4 is keeping silent and not saying anything in the matter. It is, therefore, submitted that in the interest of justice, it is necessary that respondent no.4 be impleaded as a party defendant. The learned counsel appearing for the petitioner relied upon the judgment of the Apex Court in case of “Sumtibai and Ors Vs. Paras Finance Co. Reg. Partnership Firm Beawer (Raj.) Through Mankanwar (Smt.) W/o Parasmal Chordia (Dead) & Ors reported in (2007) 10 SCC 82”. 5 Mr.Godbole, learned counsel appearing on behalf of respondent/defendant nos.1 & 2 on the contrary submits that the jurisdiction of this Court under Article 227 of the Constitution of India is very limited. It is submitted that only in the event that this Court finds that the jurisdiction exercised by the learned trial court has been exercised in a perverse manner, it would be permissible for this Court to interfere in the extraordinary jurisdiction under Article 227 of the Constitution of India. The learned counsel submits that the learned trial court relied upon the judgment of the Apex Court in case “Bharat Karsondas Thakkar Vs. *4* 16.wp.9350.09.sxw Kiran Construction Company and Ors. reported in (2008) 13 SCC 658” and rejected the application and as such, no interference would be warranted. 6 The question as to whether any right in the property has been created by defendant nos. 1 and 2 in favour of respondent no.4 , in my view would not be relevant for the purpose of adjudication of the present petition. Apart from that, there is a specific finding by the co-ordinate bench of this Court in Appeal from Order No.401 of 2009, in its order dated 13th August 2009, to the effect that since there is a specific stipulation in the power of attorney that the said agreement will come into existence only after dissolution of the interim injunction, no rights have been created in the said property and the agreement in question would become effective only after dissolution of an injunction injunction order in the present suit. Though the observations made by the learned Judge are made in the proceedings arising out an order 39 Rule 11 of the Code of Civil Procedure, as a matter of judicial propriety, it would not be appropriate for me to take any other view than the one taken by the co-ordinate bench of this Court. 7 In so far as the judgment in the case of Sumtibai and Others is concerned, no doubt that learned Senior Counsel Mr.Dhakephalkar is *5* 16.wp.9350.09.sxw justified in relying on the observations made by the Apex Court in the said judgment. However, it is to be noted that in the said proceeding, an application was made by the third party, claiming the rights in the property. In that view of the matter, the Apex Court held that if a party seeking its impleadment can show a fair semblance of title or interest, he can certainly file an application for impleadment. It has further be held that to take a contrary view would lead multiplicity of proceedings because then the person seeking impleadment will have to wait until a decree is passed in the original suit and then file a suit for cancellation of the decree. It is to be noted that in the present case though respondent no.4 is duly served and and represented, he has chosen not to open his mouth. In the event, respondent no.4 had moved an application to implead him as party defendant, then the judgment which is relied by Mr Dhakephalkar would have certainly come to rescue of the person seeking his impleadment. For the reasons best known to respondent no.4, he does not desire his impleadment. 8 In so far as the facts of the present case is concerned, they are more near home in the case of “Bharat Karsondas Thakkar Vs. Kiran Construction Company & Ors. reported in (2008) 13 SCC 658. In the said case also, a Chamber Summons had been moved by the plaintiff to join a party as defendant on the ground that the said party had acquired *6* 16.wp.9350.09.sxw the subsequent interest in the suit property and therefore, was required to be joined as a party defendant. The learned Single Judge of this Court had rejected the said Chamber Summons. Being aggrieved thereby an appeal was carried before the Division Bench of this Court, allowing the appeal the Division Bench of this Court directed impleadment of the party as a defendant. The same was carried before the Apex Court. In this background, the Apex Court observed thus : “31. In our view, the decision of this Court in Durga Prasad's case (supra), cannot be brought to the aid of the case made out by respondent No.1. Furthermore, the Division Bench of the High Court also appears to have committed an error in observing that the decision in Anil Kumar Singh's case (supra) was not applicable to the facts of this case, despite the fact that on a consideration of the provisions of Order 1 Rule 10 and Order 22 Rule 10 of the Code, this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15 (a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh's case (supra) in a suit for specific performance, the respondent, who was not a party to the contract but wanted to be impleaded as a defendant on the ground that he had acquired subsequent interest as a co-owner by virtue of a decree obtained from the court, was held not entitled *7* 16.wp.9350.09.sxw to be joined as defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 6 of the Specific Relief Act, 1963. ” 9 The Apex Court in the clear terms has held that any attempt to join a third party as defendant in a suit for specific performance would be heed by by Section 15(a) of the Specific Relief Act 1963. The learned trial Judge, relying on the judgment of the Apex Court cited (supra) has rejected the application. It cannot be said that the learned Judge has erred in applying the law as laid down by the Apex Court in the facts of the present case. Noticing the limitations of this Court under Article 227 of the Constitution of India, it cannot be said that the discretion which is vested with the learned trial Court under Order 1 Rule 10 of the Code of Civil Procedure has been exercised either in a perverse or capricious manner so as to warrant interference. In that view of the matter, no case is made out for interference. Hence the writ petition is rejected. 10 At this stage, Mr.Dhakephalkar, learned Senior Counsel appearing on behalf of the petitioner requests for continuation of the interim order passed by this Court for a further period of eight weeks from today. 11 Mr.Godbole vehemently opposes this prayer on the ground that an order of injunction is unnecessarily operating against respondent- *8* 16.wp.9350.09.sxw defendant nos.1 and 2 for a period of last 16 years. He submits that on account of various frivolous litigations filed by the present petitioner, hearing of the suit could not be proceeded though that written arguments have already been filed on behalf of defendant nos.1 and 2 before the learned trial court. 12. Taking into consideration that an interim order has been operating for a considerable length of time, I am inclined to continue it for a period of four weeks. (B.R. GAVAI, J.)