kbp 1 8071-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8071 OF 2009 Babul Hendrya Mhatre ..Petitioner Vs. Waman Kanha Mhatre and ors. ..Respondents ......... Mr.Kiran N. Joshi, for petitioner. Mr.S.V.Palsuledesai, for respondent no.1. ......... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the parties. 2] Petitioner is the original third defendant. The first respondent is the original plaintiff. An application was made by the petitioner under Rule 10(2) of Order I of the Code of Civil Procedure, 1908, praying that the first respondent be directed to implead his three brothers as party defendants to the suit. The second prayer in the said application was for deleting the names of the original first and second defendants. By the impugned order dated 9 th July, 2009, the said application has been rejected by the trial Court. The application has been rejected by the trial Court on merits as well on the ground that the application was made when the suit was fixed for cross-examination of the defendant. 3] The learned counsel appearing for the petitioner submitted that on the same date on which the impugned order was passed, the petitioner was permitted to amend the written statement for raising a contention that the brothers of the petitioner were necessary and proper parties to the suit. His kbp 2 8071-09.sxw submission is that if the amendment to the written sttement for raising a contention that the brothers of the petitioner are necessary parties is allowed, the trial court ought to have allowed the application made by the petitioner by directing the first respondent plaintiff to implead the petitioner’s brothers as parties. He submitted that the first and second defendants are neither necessary nor proper parties, as by registered sale deed dated 15 th February, 1995 the said defendants have sold the suit property to the petitioner and his brothers. He, therefore, submitted that the trial Court ought to have deleted the names of the first and second defendants. 4] I have given careful consideration to the submissions. The first respondent – plaintiff is dominus litis. At the instance of the third defendant he cannot be compelled to implead third parties as part defendants in the suit. It is pertinent to note that the brothers of the petitioner have not applied for impleading themselves as parties. The petitioner has already raised a contention that his brothers are necessary parties to the suit. While deciding the suit, the trial court is bound to consider the legal effect of non joinder of the brothers of the petitioner as parties to the suit. As far as the first and second defendants are concerned, it must be stated here that the first defendant has died and the petitioner who is third defendant has been shown as her legal representative. The suit filed by the first respondent is for declaration that the defendants are the trespassers upon the suit property and for possession. There is a prayer for mesne profit at the rate of Rs.5,750/- per month. Therefore, there is a specific prayer made against the first and second defendants. Whether the first respondent plaintiff is entitled to any relief against the said defendants or not is the matter to be decided by the trial court at the time of final hearing. Moreover, the first defendant is already dead and second defendant has not made any application for deleting his name. kbp 3 8071-09.sxw 5] Considering the aforesaid factors, the trial court was justified in rejecting the application made by the petitioner, especially when the application was made when the evidence is being recorded. Notwithstanding the rejection of the application, the contention of the petitioner that his brothers are the necessary and proper parties to the suit is bound to be considered by trial Court while deciding the suit. 6] Subject to what is observed above, no case is made out for interference. The Writ Petition is rejected. ( A.S.OKA, J. )