1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 240/2006 (Shri Narendra Vithoba Pusadkar vs. Shri Govindrao Bakaram Thete and 4 others) ...................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ...................................................................................................................................................................... Ms. Trupti Bharadwaj, Advocate, h/f Shri Raju Dhoble, Advocate, for petitioner Mrs. Sunita Taksande, Advocate, for R-1, 3 & 5 ... CORAM : R. K.DESHPANDE, J. DATED : 20th SEPTEMBER, 2010. This writ petition challenges the order dated 15.12.2005 passed by the learned Civil Judge, Senior Division, Nagpur, allowing Exh. 26 i.e. an application under Order 1, Rule 10 of C.P.C, filed by respondent nos. 4 and 5 for joining them as party defendants in Special Civil Suit No. 19/2002. The application under Order 1, Rule 10 of C.P.C. filed by respondent nos. 4 and 5 has been allowed by the trial Court by an impugned order on the ground that the respondent nos. 4 and 5 are claiming that the property in question is an ancestral property and they have share in it. According to the respondent nos. 4 and 5 the property has been disposed of by the defendants without their consent and knowledge. The trial Court, therefore, directed impleadment of respondent nos. 4 and 5 as defendants 2 in the suit with a finding that no harm would be caused to the plaintiff. 2] The Apex Court in its judgment reported in (2005) 6 SCC 733; Kasturi vs. Iyyamperumal and others, has held that the parties to the contract or the parties claiming under them, or a person who had purchased the contracted property from the vendor with or without notice of the contract are only necessary parties in a suit for specific performance of contract. It has further been held that a person who claims an independent title or possession is not a necessary party since an effective decree can be passed in his absence and no relief can be claimed against such property. The Apex Court has also laid down the test to be applied in respect of the application under Order 1, Rule 10 (2) of C.P.C. and those are; (i) That, there must be a right to some relief against such property in respect of all controversies involved in the proceeding, or (ii) No effective decree can be passed in his absence. 3] In the present case, the plaintiff and the defendant nos. 1 to 3 are the parties to the contract and the respondent nos. 4 and 5, who had moved the application under Order 1, Rule 10 of C.P.C., are not the parties to the contract. They are claiming that the 3 property is an ancestral property and they have share in it. It is, therefore, open for them to adopt all such appropriate raemedies as are available to them in law to claim the share in the suit property. The plaintiff has neither claimed any relief against the respondent nos. 4 and 5, nor it is a case where an effective decree cannot be passed in absence of respondent nos. 4 and 5. Apart from this, the plaintiff is a dominus litis, now it is for him to decide against whom he should proceed and what relief he should claim. If the defendant nos. 4 and 5 are allowed to be joined as defendants, then the scope of the suit for specific performance of contract would be enlarged to a claim for partition and possession of the suit property. The same is not permissible. The parties cannot be added in the suit merely for a sake of convenience. The order passed by the trial Court allowing the application Exh. 26 cannot, therefore, be sustained. 4] In the result, the instant writ petition is allowed. The order dated 15/12/2005 passed below Exh. 26 in Special Civil Suit No. 19/2002, by the learned Civil Judge, Senior Division, Nagpur, is hereby quashed and set aside. The application Exh. 26, filed by Respondent nos. 4 and 5 is dismissed. No order as to costs. JUDGE Rvjalit