(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 9756 OF 2010 Sayed Mehmood Ahmed s/o. Sayed Nasar, .. Petitioner Aged : 50 years, (Original applicant in Occupation : Agriculture, Exh.11 in R.C.S. R/o. Basmath, Taluka : Basmath, No. 95/2010) District : Hingoli. versus 1. Shaikh Farukh s/o. Shaikh Mohammad, Aged : 42 years, Occupation : Advocate, R/o. Ashok Nagar, Basmath, Taluka : Basmath, District : Hingoli. 2. Javedkhan s/o. Issaquekhan Pathan, Aged : 34 years, Occupation : Agriculture, R/o. Ashok Nagar, Basmath, Taluka : Basmath, District : Hingoli. 3. Sayed Abrar s/o. Sayed Mohammad, Aged : 40 years, Occupation : Service, R/o. Ashok Nagar, Basmath, Taluka : Basmath, District : Hingoli. (2) 4. Shaikh Fahim s/o. Shaikh Janimiya, Aged : 30 years, Occupation : Business, R/o. Ashok Nagar, Basmath, Taluka : Basmath, District : Hingoli. 5. The Municipal Council, .. Respondents Basmath, through its (Nos.1 to 4 - Chief Officer, Basmath, Original plaintiffs District : Hingoli. & Nos.5 and 6 - 6. The Maharashtra State Electricity Original defendant Power Generation Company, Nos.1 and 2 in Sub-Division, Basmath, R.C.S. No. 85 of through its Assistant Engineer, 2010) Basmath, Dist. : Hingoli. ***************** Mr. S.S. Choudhari, Advocate, for the petitioner. Mr. A.B. Dhongade, Advocate, for respondent nos.1 to 4. ***************** (3) CORAM : B.P. DHARMADHIKARI, J. DATE : 19TH JANUARY 2011 ORAL JUDGMENT : 1. Heard learned Counsel appearing for the petitioner and the learned Counsel appearing for respondent nos.1 to 4. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. As no order adverse to the interest of respondent nos. 5 and 6 is being passed, service of notice, upon rule, on the said respondents is dispensed with. 4. Mr. S.S. Choudhari, learned Counsel appearing for the petitioner, has invited attention to prayers in plaint to show that direction sought is not to shift high tension power line from field Survey No. 151 belonging to the present petitioner, to a municipal road situated adjacent to Survey No. 152 and to the residential house of respondents in Survey No. 152. According to him, the petitioner made efforts, obtained necessary clearances and decision to shift that power line to the municipal road is (4) already taken. Because of present suit and interim orders obtained therein, the decision could not be implemented. The petitioner moved an application under Order I Rule 10 of the Code of Civil Procedure, 1908, for joining him as party in the suit and that application has been rejected. 5. Mr. A.B. Dhongade, learned Counsel appearing for respondent nos.1 to 4, points out that the trial court has while passing orders, taken care to see that interest of present petitioner is not affected in any way. He, therefore, states that the petitioner is rightly found to be not necessary party in the suit. 6. It is apparent that whether petitioner is or is not necessary party can be decided only on the basis of plaint allegations and not on the basis of court orders. If court orders affect him in any way when he is not party, those orders cannot operate to his prejudice. The prayers in plaint clearly show that there is reference to Survey No. 151 of the present petitioner and relief sought is not to permit shifting of the power line from that Survey number to adjacent municipal road. The facts above clearly show that if power line is not to be shifted from field Survey No. 151, the petitioner is adversely affected. 7. The petitioner is, therefore, necessary party. The trial (5) court has overlooked this aspect and there is, therefore, jurisdictional error. 8. In the result, the petition is allowed. (i) The impugned order dated 19th July 2010, passed by the learned Joint Civil Judge (Junior Division), Basmath, below Exhibit 11 in Regular Civil Suit No. 95/2010, is quashed and set aside. (ii) The application Exhibit 11 filed by the petitioner, seeking to add him as party defendant in the suit, stands allowed. The petitioner is directed to be added as party defendant in Regular Civil Suit No. 95/2010. (iii) Because of addition of petitioner as defendant, if the plaintiffs want to amend their plaint in any way, they are at liberty to do so. (iv) It is made clear that the observations made by this Court about respective rights and entitlement of parties are only for the purposes of consideration of issue under Order I Rule 10 of the Code of Civil Procedure, 1908, and are not final and binding. The trial court shall not be influenced by the same and it shall (6) decide the suit on its own merits. 9. Rule is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp9756