gst 1 wp8682.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 8682 OF 2010. Dattu Balwant Kothule & Ors. .... .... Petitioners. V/s Raymond Framroze Gagrat & Ors. .... Respondents. Mr.G.S.Godbole, Adv. For the petitioners. Mr.Milind M. Sathaye, Adv. For R.No.1. CORAM: B.R. GAVAI, J. 7th April, 2011 PC: By way of present petition the petitioner challenges the order dated 28.7.2010 vide which the application filed by the respondent No.1-plaintiff for amendment of plaint to implead defendant Nos. 13 and 14 came to be allowed. 2. The plaintiff has filed a suit for specific performance. It is the contention of the plaintiff that defendant Nos.1 to 14 have transfered the suit land in favour of defendant Nos. 15 to 21 though there was a subsisting agreement in favour of the plaintiff. In the said suit initially defendants 13 and 14 are impleaded as defendants. Vide pursis dated 16.9.1997 said defendants were deleted. However subsequently vide application below Ex.104 prayer was made for impleading them again as defendants. Said application is allowed. Hence the present petition. 3. Mr.Godbole, learned counsel appearing for the petitioner submits that the impugned order is not sustainable on four grounds viz; (i) that since the plaintiff had abandoned his claim against defendant Nos.13 and 14 without leave of the Court, it was not permissible to again implead said respondents; (ii) that aforesaid application after commencement of trial was not tenable in view of the provisions of Order 6 Rule 17 of CPC; (iii) that on the date on which the application was made one of the defendant i.e. defendant No.14 had expired gst 2 wp8682.10.sxw and pursis to that effect was already on record; (iv) that defendant Nos.13 and 14 are not party to the Issar Pavati executed between other defendants and plaintiff. As such they are not necessary parties. 4. Mr.Sathyaye, learned counsel appearing on behalf of the respondents submits that the learned trial Court has given cogent and sound reasons for allowing the application and as such no interference is warranted. 5. Rule 4 of Order 23 reads thus: “(4) Where the plaintiff ___ (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” 6. Perusal of sub-rule 4 of Order 23 would reveal that same would be applicable when the plaintiff abandons any suit or part of claim and makes an attempt to institute any fresh suit in respect of such subject matter or of such part of claim. The perusal of record reveals that earlier pursis was only filed deleting defendants 13 and 14 on misconception that they had given up their share in favour of other co-parceners. However it can be seen that no pursis to that effect was filed that the plaintiff had abandoned the claim as against the said defendants. The subsequent application was necessitated on account of specific stand taken by other co-parceners in their written statement that the suit without joining defendants 13 and 14 was hit by non-joinder of necessary parties. In any case, no fresh suit is being filed against defendants 13 and 14 and they are only sought to be impleaded again on account of their earlier deletion on erroneous conception. In that view of the matter I am not able to accept the contention in this regard. 7. In so far as the contention regarding applicability of amended provisions gst 3 wp8682.10.sxw of Order 6 Rule 17 is concerned the present suit is a suit filed prior to the amendment of Code of Civil Procedure which was brought into effect from 1.7.2002. As such the contention in this regard also cannot be accepted. 8. In so far as third contention regarding defendants 13 and 14 not being necessary party as they were not party to the agreement between other co- parceners and plaintiff is concerned, it is settled law that at the stage of admission the Court is not required to go into merits of the matter. In any case, since other co-parceners have taken the specific defence that defendants 13 and 14 are necessary parties the contention in this regard by third party cannot be entertained. 9. In so far as the fourth contention regarding suit being filed against dead person is concerned, from the record it can be clearly seen that no objection in this regard was raised while the application for amendment was heard and decided. If petitioners are entitled in law to raise any objection in this regard they would be at liberty to raise before the learned trial Court. 10. It can thus be seen that the discretion which has been exercised by the learned trial Court has been exercised which advances the purpose of justice rather than foreclosing the doors on hyper technical grounds. In that view of the matter no case is made out for interference in extra ordinary jurisdiction under Article 227 of the Constitution of India. 11. At this stage learned counsel Mr.Godbole on behalf of the petitioners requests for extension of stay which was granted by this Court while issuing notice. Mr.Sathaye vehemently opposes the request. 12. Suit in question is of year 1996. Almost 15 years have elapsed from the date of filing of the suit. The amendment to CPC has been brought into effect with the intention that the suits should be disposed of expeditiously. In that view of the matter I am not inclined to entertain the request made. Prayer is rejected.