1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.282 OF 2011 1. Shri Devu Ganesh Gaonkar, son of late Ganesh Rama Gaonkar, major in age, agriculturer, 2. Shri Ratnakar Ganesh Gaonkar, son of late Ganesh Rama Gaonkar, major in age, K.T.C., Conductor, 3. Smt. Roshan Ratnakar Gaonkar, wife of Shri Ratnakar Ganesh Gaonkar, major in age, housewife, 4. Kum. Jayanti Ganesh Gaonkar, d/o. late Ganesh Rama Gaonkar, major in age, unmarried, All residents of Tansi, Loliem, Canacona Goa. 5. Shri Rama Yesso alias Yessu Gaonkar, son of late Yesso alias Yessu Gaonkar, major in age, agriculturer and his wife, 6. Smt. Sita Rama Gaonkar, Wife of Rama Yesso Gaonkar, major in age, housewife, Both residents of Tansi Loliem, Canacona, Goa. …. Petitioners V/s 1. M/s. Koshy Estates, a commercial establishment owned by (i) Shri Ajish Koshy, aged 28 years, and (ii) Shri Abeesh Koshy, 2 aged 26 years, both sons of late Kochu Koshy, Indian Nationals, having office at Koshy Chambers, M-Floor, Opp. K.T.C. Bus Terminus, Vasco da Gama, Goa. 2. Shri Vishnu Chandru Gaonkar, son of Chandru Gaonkar, major in age, and his wife, 3. Smt. Vidhanti alias Ganga Vishnu Gaonkar, wife of Vishnu Gaonkar, major in age, Teacher. Both residents of Ghodkem, Quepem-Goa. 4. Shri Shashikant alias Prasad Purso Velip, son of late Purso B. Velip, major in age, service, 5. Shri Ghanashyam Madkaikar, major in age, service. 6. Smt. Mog Ghanashyam Madkaikar, d/o. late Ganesh Rama Gaonkar, wife of Ghanashyam Madkaikar, …. deleted major in age, service, Both residents of Madkai, Ponda, Goa. 7. Shri Janu Narayan Gaonkar (deceased) represented by his heirs: (a) Smt. Shobhavati Janu Gaonkar, wife of late Janu Gaonkar, major in age, housewife, 3 (b) Shri Narayan Janu Gaonkar, son of late Janu Gaonkar, major in age, Agriculturer, (c) Smt. Navita Narayan Gaonkar, wife of Narayan Janu Gaonkar, major in age, housewife, (d) Kum. Sushmita Janu Gaonkar, d/o. late Janu Gaonkar, major in age, unmarried, (e) Kum. Saluja Janu Gaonkar, d/o. late Janu Gaonkar, major in age, unmarried, (f) Miss Sarita Janu Gaonkar, d/o. late Janu Gaonkar, major in age, unmarried, All residents of Tansi, Loliem, ... deleted Canacona, Goa. 8. Shri Laxman Rama Gaonkar (deceased) Represented by his heirs: (a) Shri Rama Laxman Gaonkar, son of late Laxman Gaonkar, major in age, Agriculturer, (b) Shri Premanand Ram Gaonkar, son of late Ram Gaonkar, major in age, Agriculturer, Both residents of Tansi, Loliem, Canacona, Goa. (c) Smt. Chandravati Harichandra Laxman Gaonkar, wife of Harichandra Laxman Gaonkar, major in age, housewife. All residents of Tansi, Loliem, 4 Canacona, Goa. 9. Shri Rama Shabu Gaonkar, son of late Shabu Gaonkar, major in age, service. 10. Smt. Laxmi Rama Gaonkar, wife of Rama Shabu Gaonkar, major in age, housewife. 11. Shri Anand Ram Gaonkar, son of late Ram Shabu Gaonkar, … deleted major in age, 12. Shri Shabu Ram Gaonkar, son of Ram Shabu Gaonkar, major in age, 13. Shri Sanjay Ram Gaonkar, son of late Ram Shabu Gaonkar, major in age, All residents of Tansi, Loliem, Canacona, Goa. …. Respondents Shri Sudin Usgaonkar, Advocate for the Petitioners. Shri C. Mascarenhas, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 10th OCTOBER, 2011 JUDGMENT : Heard Shri Sudin Usgaonkar, learned Counsel appearing for the petitioners and Shri C. Mascarenhas, learned Counsel appearing for the respondents. 5 2. The above petition challenges the order dated 1/04/2011 passed by the learned Civil Judge, Junior Division, Canacona, whereby an application filed by respondent no.1 to be impleaded in a suit filed by the petitioners under Order 1 Rule 10 of the Civil Procedure Code came to be granted. 3. The petitioners filed the suit against the respondents no.2 to 13 praying, inter alia, for a permanent injunction restraining the said respondents, their agents, servants, family members, and legal representatives from measuring, demarcating the suit property under any pretext and selling/alienating, disposing off, encumbering the suit property or any part thereof till the disposal of the suit. Pending the hearing of the said suit the petitioners also sought for a temporary injunction. The said respondents no.2 to 13 have filed their written statement disputing the claim put forward by the petitioners. The written statement also does not disclose about any alleged agreement with the respondent no.1. In the meanwhile, the respondent no.1 filed an application dated 23/10/2010 stating, inter alia, that the said respondents no.2 to 13 have already conveyed the suit property to the purchasers and perpetual lessee in terms of Deed of Sale dated 28/07/2008 which 6 was executed on the basis of the memorandum of understanding between them and the deceased respondent no.1. It is further their contention that the said respondents have already received the full consideration to the said conveyance and handed over possession of the said land to the purchasers and the lessees. It is further their case that the purchasers and the lessees are bona fide transferee for valid consideration without any notice of the present litigation. On the basis of such allegation the respondent no.1 filed the said application to get itself impleaded. 4. The petitioners opposed the said application stating, inter alia, that much before the completion of the registration the petitioners had obtained an order from the competent Courts directing the Registrar not to register the sale deed. It was further denied that the said respondents had handed over the possession of the said land to the purchasers and the lessees as claimed in the Sale Deed. 5. The learned Judge whilst passing the impugned order came to the conclusion that the interest of the confirming party/respondent no.1 is very much involved in the suit property on 7 account of the indemnity clause in the said Sale Deed and, as such, any finding in the present suit shall certainly affect the legal rights of the confirming party. The learned Judge further held that to avoid multiplicity of the proceedings the impleading of the confirming party/respondent no.1 shall be much appropriate as according to the learned Judge no decree can be passed in the suit without affecting the rights of the confirming party. The learned Judge further held that any injunction granted by the Court could have affected the rights of the confirming party/respondent no.1 in the suit property. 6. Shri Sudin Usgaonkar, learned Counsel appearing for the petitioners has assailed the impugned order and pointed out that the petitioners are dominus litis in the litigation and, as such, it is not open to the confirming party to force the petitioners to litigate against him when according to the learned counsel the petitioners have no cause of action as far as respondent no.1 is concerned. Learned Counsel further pointed out that so far as indemnity clause is concerned it is to binding on the petitioners and in any event there is no such indemnity given by the respondent no.1 to the respondents no.2 to 13, who are defendants to the suit. Learned 8 Counsel further pointed out that respondent no.1 has not shown any subsisting interest over the suit property, but on the contrary, on perusal of the Sale Deed which is alleged to have been executed after the suit was filed discloses that the respondent no.1 has only a commercial interest as far as the suit property is concerned. Learned Counsel further submitted that admittedly no possession of the suit property was handed over to the respondent no.1 and, as such, the question of claiming any interest in the suit property does not arise at all. Learned Counsel further submitted that the Sale Deed dated 28/07/2008 is hit by lis pendence under the provisions of Section 52 of the Transfer of Property Act which means that merely because such Sale Deed has been executed the right of the petitioners in the suit property can in no way be affected. The learned Counsel as such submitted that the impugned order be quashed and set aside. 7. On the other hand, Shri C. Mascarenhas, learned Counsel appearing for the respondents has supported the impugned order and pointed out that respondent no.1 has indemnified the purchasers of the suit property and, as such, any decree passed in the suit would affect its rights in the suit property. The learned 9 Counsel further submitted that the temporary injunction granted by the Court would affect the rights of the respondent no.1 over the suit property and, as such, respondent no.1 is a necessary party to the suit. Learned Counsel further pointed out that as the rights of the respondent no.1 over the suit property would be affected in case the suit is not properly defended it would be appropriate that he should be impleaded in the suit to defend its rights over the suit property. The learned Counsel, as such, submitted that there is no case made out for any interference in the impugned judgment and, as such, the above petition deserves to be rejected. 8. Having heard the learned Counsel and on perusal of the record, I find that in the application filed by respondent no.1, there is no definite claim put forward by the respondent no.1 to show that it had any subsisting interest over the suit property. The alleged memorandum of understanding has not been produced by the said respondent along with the said application. The alleged indemnity clause relied upon by the learned Judge to allow the application filed by respondent no.1 is on the basis of the Sale Deed which has been executed after the suit was filed. Such Sale Deed naturally is hit by Section 52 of the Transfer of Property Act. 10 Apart form that, the purchasers of the suit property have not filed any application to be impleaded in the suit. In case the said purchasers were defendants in the suit and in case they wanted to invoke such indemnity clause it would be open to them to file an application under Order 1 Rule 8 to follow the procedure as provided therein and as such it is not open to the respondent no.1 to get itself impleaded under Order 1 Rule 10 of the Civil Procedure Code, when such third party procedure has not been invoked. Admittedly, there is no such indemnity clause in favour of any of the defendants in the suit and, as such, invoking such right in the suit filed by the petitioners does not arise at all. Apart from that, the alleged indemnity clause is claimed by the respondent no.1 on the basis of the sale deed which has been executed after the filing of the suit. As such, it is not open to the learned Judge to implead the respondent no.1 to be party to the suit as no interest in the suit property can be claimed by the respondent no.1 on the basis of the said sale deed. 9. Dealing with the contention of the learned Counsel appearing for the respondent no.1 that it has subsisting interest in the suit property, I find that merely because a memorandum of 11 understanding was executed in favour of respondent no.1 such agreement by no stretch of imagination can create any interest in the suit property without such agreement is perused by the learned Judge to consider the nature of such agreement. The very fact that respondent no.1 has shown itself as a confirming party itself discloses that it has only a commercial interest in the suit property and, as such, it has no interest in the suit property as he has no lis with the petitioners to be adjudicated in the suit. The suit filed by the petitioners is for injunction simpliciter and, as such, the question of the respondent no.1 being impleaded in the suit does not arise at all. The learned Judge has erroneously exercised its jurisdiction and allowed the impleadment of the respondent no.1 in the suit and, as such, the impugned order cannot be sustained and deserves to be quashed and set aside. 10. In view of the above, the impugned order dated 1.4.2011 is quashed and set aside. Rule is made absolute in the above terms. Petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-