1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2154/2007 (Shri Anil s/o Namdeo Raikwar & anr...vs...Sau. Ranjana w/o Munna Satarde & 14 others) ---------------------------------------------------------------------------------------- CORAM : Smt. Vasanti A. Naik, J. DATE : 29th September, 2008 Shri N.R.Bhishikar, Adv. for the petitioners. Shri Sangram Sirpurkar, Adv. for R-1 & R-2 None for other respondents. 1. Heard Shri N.R.Bhishikar, learned counsel, for the petitioners and Shri Sangram Sirpurkar, learned counsel for Respondent Nos. 1 & 2. None appears on behalf of other respondents though served. 2. By this petition, the petitioners impugn the order passed by the 3rd Joint Civil Jude (Jr.Dn.) Chandrapur, passed on 13th December, 2006 , rejecting the application filed by the petitioners under the provisions of Order 1, Rule 10 r/w Order 6, Rule 17 of the Code of Civil Procedure. 2 3. The petitioners are the original plaintiffs. A suit was filed by the plaintiffs for permanent injunction restraining the defendant Nos. 1 & 2 from interfering with the peaceful possession of the plaintiffs over the suit property. During the pendency of the suit, the plaintiffs filed an application under the provisions of Order 1, Rule 10 r/w Order 6, Rule 17 of the Code of Civil Procedure, for joining 15 persons as party defendants to the suit. It is the case of the petitioners that defendant Nos. 1 & 2 had also filed counter claim stating therein that the plaintiffs/ petitioners had encroached on their land and had asked for possession of the suit property with mesne profit. It is the case of the petitioners that a plea of non joinder of necessary parties was also raised by defendant nos. 1 & 2. In the application filed by the petitioner, it was mentioned that the suit was filed hurriedly and at that time certain other co-owners of the suit property were not joined as defendants and it was necessary in the interest of justice to permit the plaintiffs to join the other 15 persons, the 3 co-owners of the property, as party defendants to the suit. 4. The application was strongly opposed by the defendant Nos. 1 & 2. It was stated in the reply filed by defendant Nos. 1 & 2 that the evidence of the plaintiff was already closed and the proposed defendants were neither the necessary parties or proper parties to the suit. It is stated in the reply that no allegations whatsoever were made against the proposed defendants in the application. According to defendant Nos. 1 & 2, the granting of prayer in the civil application would result in the reopening of the trial. The defendant Nos. 1 & 2, therefore, sought for the dismissal of the application. 5. I have heard the learned counsel for the parties and also perused the application at Exh. 114; the reply filed thereto and the impugned order dated 17.12.2006. No fault can be found with the order passed by the 3rd Joint Civil Judge (Jr.Dn.) Chandrapur, on 17.12.2006. The suit filed by the plaintiffs was not a suit for declaration and permanent injunction, but was merely a 4 suit for permanent injunction restraining defendant nos. 1 & 2 from disturbing the peaceful possession of the plaintiff over the suit property. The suit had been instituted by the plaintiffs against the defendant nos. 1 & 2 on the ground that defendant nos. 1 & 2 were trying to dispossess the plaintiffs and to interfere with their peaceful possession. It is, however, not the case of the plaintiffs in the application at Exh. 114 that the other co-owners i.e. the proposed defendants are trying to dispossess the plaintiffs from the suit property or trying to encroach upon the same. The application at Exh. 114 cannot be allowed merely because the defendant nos. 1 & 2 had filed the counter claim against the plaintiffs. The non joinder of the other proposed defendants may prejudice the counter claim of the defendants in case the plaintiffs succeed in proving that all the necessary co-owners had not filed the counter claim. However, after the evidence of the plaintiff was closed, the trial Court rightly held that the application at Exh. 114 was liable to 5 be rejected. No grounds whatsoever had been made out in the application at Exh. 114 for granting the prayer made in the same. The trial Court has rightly exercised its discretion in rejecting the application. 6. For the reasons aforesaid, the petition is dismissed. However, in the facts of the case, there would be no order as to costs. JUDGE Rvjalit