1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 616 OF 2011 USHABAI GULABSINGH KODAPE & OTHERS ..VS.. VIKAS MARASKOLHE & ANOR Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders Court's or Judge's orders Shri D.N. Mohta, advocate for the petitioners CORAM : SMT. VASANTI A. NAIK, J. DATE : 9/3/2011. By this petition, the petitioners impugn the order passed by the Civil Judge, Senior Division, Gondia on 22.12.2010 rejecting an application filed by the petitioners for deleting their names from the array of defendants. The petitioners are the original defendant no.2 to 6. A suit was filed by the plaintiff/respondent against the defendant no.1 to 6 for specific performance of contract. It was the case of the plaintiff that the defendant no.1 was the husband of the defendant no.2 and the father of defendant no.3 to 6 and he had agreed to sell the ancestral property to the plaintiff for a consideration @ Rs.1,00,000/-. The plaintiff pleaded that since the land was the ancestral property of the defendant no.1, the plaintiff subsequently on 29.3.2008 obtained consent letter in regard to the said agreement from the defendant no.2 to 6 by way of abundant precaution, so that they should not object to the 2 sale of the suit property to the plaintiff. Since the defendant no.1 failed to perform his part of the contract the suit was instituted against the defendants. The defendant no.1 filed the written statement and denied the claim of the plaintiff. It was denied that the defendant no.1 had entered into an agreement of sale with the plaintiff. It was denied that the plaintiff was ready and willing to perform his part of the contract. It was pleaded that the alleged agreement of sale was not to be acted upon. The defendant no.1 sought for the dismissal of the suit. During the pendency of the suit the defendant no.2 to 6 filed an application under Order 1 Rule 10(2) read with section 151 of the Code of Civil Procedure for deletion of their names from the array of defendants. It was the case of the defendants no.2 to 6 that they were not parties to the agreement and hence they were neither proper nor necessary parties to the suit. The plaintiff strongly opposed the application filed by the defendants and pleaded that the suit property belonged to defendant no.1 to 6 and the defendant no.2 to 6 had given consent for permission to sell the suit property and in such circumstances, it was not in the interest of justice to delete their names from the array of defendants. The trial court by the impugned order dated 22.12.2010, rejected the application filed by the petitioners. On hearing the learned counsel for the petitioners and on perusal of the plaint pleadings, as also the alleged 3 consent letter dated 19.3.2008, it appears that the trial court was perfectly justified in holding that the petitioners were proper and necessary parties to the suit. Though normally the petitioners would not have been the necessary parties to the suit, in view of the provisions of section 19 of the Specific Relief Act 1963, in the facts and circumstances of the case, they were rightly joined as defendants by the plaintiff. It is necessary to note that it is categorically pleaded by the plaintiff in the plaint that the suit property was an ancestral property and the defendants no.2 to 6, the wife and the children of defendant no.1 were joined as parties to the suit as they had a share in the suit property. Moreover, it was also pleaded by the plaintiff that on 29.3.2008, the plaintiff had obtained a consent letter from the defendant no.2 to 6 for seeking permission for sale of the property so that they may not object to the sale in favour of the plaintiff in future. In the backdrop of the aforesaid fact it was clear that the petitioners were at least proper parties to the suit as in the consent letter signed by the defendant no.2 to 6 on 19.3.2008 it was stated by the defendant no.2 to 6 that the defendant no.1 – husband of defendant no.2 and the father of defendant no.3 to 6 had agreed to sell the suit property to the plaintiff and since both the plaintiff and the defendants were Adivasis it was necessary to obtain “no objection certificate” from the Collector Gondia for the sale of the property. It was also stated in this consent deed that 4 the defendant no.2 to 6 who had a share in of the suit property by inheritance had signed the consent deed as they had no objection or complaint in regard to the statement in the consent deed. It is thus clear from the consent deed dated 19.3.2008, of which reference is made in the plaint by the plaintiff that the defendant no. 2 to 6 had stated that they were aware of the agreement of sale executed by the defendant no.1 in favour of the plaintiff and they had no objection for the sale. In the peculiar facts and circumstances of the case, it cannot be said that the defendant no.2 to 6 / petitioners are not proper parties to the suit. The judgments reported in AIR 1973 Bombay Page 330 and 2008(1) Mh.L.J. Page 473 are clearly distinguishable on facts and cannot be made applicable in the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE SMP