1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3741 OF 2010 (Dr. Kawadu Ganpatrao Kutomate vs. Shamrao Raghunath Thenge & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 24, 2010. Heard finally Shri Khajanchi, learned counsel for the petitioner and Shri Joharapurkar, learned counsel for respondents No. 2 to 5. The respondents – plaintiffs chose to prosecute suit against the present petitioner in his individual capacity and in spite of specific objection raised, pointing out necessity of proper parties, no steps were taken. Later on an application under Order 1, Rule 10 of Civil Procedure Code was moved and Trust was sought to be impleaded as party with Trustees and a para vide para 8-A was sought to be added. Para 8A raised a contention that because of change in office bearers of defendant No. 2 (then proposed to be added) during the pendency of the suit, no title could be conferred on the defendants. It was specifically stated that defendants No. 2 to 8 were joinned only to avoid technicalities. By speaking order on 22.08.2010, that application was rejected. The respondents then examined their witness and his cross examination revealed that no relief was being claimed against the Trust. The written notes of arguments filed by the 2 respondents also in para 3 supported the contention that Trust was not necessary party to the suit. In his written notes of arguments present petitioner (defendant) asserted that Trust was necessary party. While delivering final judgment, it appears that trial Court passed separate order below Exh. 1 on 10.02.2010 and directed the respondents - plaintiffs to join Trust as party with its Trustees. This order is questioned before this Court. According to Shri Khajanchi, learned counsel for the petitioner, in the light of facts on record, attempt is by way of after thought and also it causes serious prejudice to defendants as suit has been filed in 2005 and defect is sought to be rectified in 2010. Contention is, the Court could not have passed order contrary to its earlier order and earlier order had attained finality. Shri Joharapurkar, learned counsel has urged that because of limited scope available to this Court under Article 227 of Constitution of India, interference in the matter is not legally permissible. He is relying upon the judgment of the Hon'ble Apex Court in the case of Subodh Kumar Gupta & Ors. vs. Alpana Gupta & Ors., reported at (2005) SCC 578. His further contention is, no prejudice is caused to the defendant if Trust is allowed to be added as party. The perusal of impugned order shows that during evidence, material has come on record which shows that defendant though initially not connected with Trust has in the year 2006 become its President and 3 trial Court has in the impugned order found that document at Exh. 63 has the effect of transferring the plot to that Trust. The perusal of plaint as filed clearly shows that the respondents pleaded transfer to defendant and a misrepresentation by him that he was connected with the Trust in that document. Because of his misrepresentation, declaration has been sought in the suit that respondents/ plaintiffs continue to be its owners of suit property. The earlier order passed by the trial Court in this respect on 27.08.2008 was not subjected to any challenge by the respondents and it has attained finality. The respondents have not changed their case in any way and hence by the impugned order, the trial Court has suo motu evolved a new theory. An order contrary to its own earlier order has been passed as an interlocutory order. The judgment of the Hon'ble Apex Court relied upon by Shri Joharapurkar, learned counsel, cannot assist the respondents in these circumstances. There, later on, defendant himself acquiesced in earlier effort of plaintiffs to implead his wife and daughters. There was also no earlier reasoned order. In this situation, impugned order dated 10.02.2010 passed below exh. 10 is hereby quashed and set aside. Writ Petition is allowed. Rule is made absolute accordingly. No order as to costs. JUDGE *GS.