1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5330 of 2009 Shri Ramanlal s/o. Thakurdas Parikh Age 84, Occ. Social worker R/o. Kharakowa, Aurangabad. Petitioner ( Original plaintiff No.1) Versus 1) Syed Ayyas s/o. Syed Musa Age 26 years, Occ. Business, R/o. Plot No.1 Jaswantpura, Aurangabad. 2] Sheshrao Bhikaji Salve Age 40 years, Occ. Business, R/o. Sara Pride, Plot No.2-A, Ranjitnagar, Aurangabad. 3) Akhtarunissa Begum D/o. Alleged Mubarak Begum alias Yukub Begi, R/o. Hyderabad, A.P. Through alleged G.P.A. Mir Yawar Ali KHKan S/o. Hyder Yar Jung, Age ___, Occ. Business, R/o. Samarthnagar, Aurangabad Dead Lrs. (respondent Nos. 3 to 20 are major) 4) Fariuddin H/o. Akhtarunnissa Begum Age _ Occ. Business. R/o. House NO. 1B-2-867/3 Khan Villa Akbar Bagh, Hyderabad (A.P.) 2 5) Mohd. Nuruddin Salim s/o. Late Akhtarunnissa Begum Age __ years, Occ. Business R/o. As above. 6) Mohd. Zabruddin s/o. Late Akhtarunnissa Begum Age. _ Occ. Business, R/o. As above. 7) Mohd. Umaruddin S/o. Late Akhtarunnissa Begum Age. _ Occ. Business, R/o. As above. 8) Mohd. Mirajuddin S/o. Late Akhtarunnissa Begum Age. _ Occ. Business, R/o.As above. 9) Mohd. Ghousuddin s/o. Late Akhtarunnissa Begum Age. _ Occ. Business, R/o. As above. 10) Aziza anjum D/o. Late Akhtarunnissa Begum Age. _ Occ. Business, R/o. As above. 11) Municipal Corporation, Aurangabad through its Commissioner, Aurangabad. 12) Smt. Sushilabai w/o. Shrinivasrao Khote Age _ Occ. Household R/o. Swatantra Sainik Colony, Aurangabad. 13) Mohd. Zubair s/o. Amanullah Motiwala 3 Age __ Occ. Business. R/o. Jalna Road, Aurangabad. 14) Mohd. Haroon s/o. Abdul Sattar, Age __ , Occ. Bueinss, R/o. Motiwala Nagar, Aurangabad. 15) Shankarlal s/o. Jaglal Jaiswal Age __ , Occ. Business, R/o. Dawoodpura, Bag Sher Jung, Aurangabad (Respondent Nos. 14 and 15 Through G.P.A. Yunus Patel S/o. Musa Patel, Age, , Occ. Business R/o. Yunus Colony, Aurangabad. 16) Rameshlal S/o. Jaglal Jaiswal, Age __ Occ, Business, R/o. As above. 17) Sushil Rajabhau Kapadiya Age _ years, Occ. Business, R/o. Near Abhinay Talkies, Aurangabad. 18) Ajay Navneetdas Shah, Age --, Occ. Business, R/o. Ajabnagar, Aurangabad. 19) Heeraben w/o. Purushottam Shah, Age __, Occ. Household, R/o. Jyotinagar, Aurangabad. 20) Trimbak Khondiba Chavan, Age __ , Occ. Agriculture, R/o. Jalna Road, Aurangabad. Respondeent Nos. 1 to 20 are major. 4 Respondents Mr. A.P. Bhandari, Advocate for the petitioner, Mr.U.B. Bondar, Advocate for respondent Nos. 1 and 2 CORAM : R. M. BORDE, J. DATE : 3rd May, 2010. PER COURT :- 1. Heard respective counsel appearing for the parties. Rule. With the consent of the parties, petition taken up for final disposal at the admission stage. 2. The petitioners herein have presented a suit bearing R.C.S. No. 100/2000, claiming a decree of perpetual injunction against the defendant Nos. 3 to 11 and the power of attorney of the defendant No.3 or anybody claiming through or under him. The property involved in the dispute is land bearing Old Survey No. 2/2. CTS No. 14814/A part of Old Municipal House NO. 2412/1, more specifically described in the plaint, situated at Dawoodpura,Bag Sher Jung, Aurangabad It is not necessary to go into the factual details of the matter. 3. The respondents Nos. 1 and 2, presented an application in the pending suit on 10/6/2009, claiming their impleadment in the suit as defendants. The application was opposed by the plaintiffs contending that they are the masters of the suit and third party applicant cannot be permitted to implead themselves against their wishes. It is also contended that the application so presented is in 5 collusion with the defendants and in order to drag the litigation. The plaintiffs as such, requested the court to reject the application. 4. The trial court, after hearing the contentions of the respective parties was pleased to allow the application in view of the judgment and order dated 16 th July, 2009, which is impugned in the present petition. 5. Counsel appearing for the petitioner vehemently contends that the suit is presented by the plaintiffs claiming a decree of perpetual injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs over the suit property. It is stated that the cause of action for filing the suit arose on 21/1/2002 when the defendants, alongwith their companions tried to interfere in the peaceful possession of the plaintiffs. It is the contention of the plaintiffs that by its very nature, the claim raised in the plaint i.e. a restraint order, is a relief in personam and under such circumstances, the third party applicant cannot be considered as persons likely to be affected by the final decree and order that may be passed in the suit. 5. it is contended that the third party applicants have not disclosed their interest in the property and the application is presented only with a view to prolong the litigation. It is further contended that no relief is claimed against the third party applicant. It is also not alleged that the third party applicant ever caused interference in the possession of the plaintiffs. As such, it was not appropriate on the part of the trial court to direct their impleadment in the suit against the wishes of the present plaintiffs. 6 6. The counsel appearing for the petitioners seeks leave to place reliance on the judgment of this Court in the matter of “Jivanlal Damodardas Wani Vs. Narayandas Ukha Sali” reported in AIR 1973 Bombay 148 and contends that the plaintiffs are the dominus litis and the third party applicants cannot be permitted to implead themselves against the wishes of the plaintiffs. 7. The counsel appearing for the respondents third party applicants contends that they are in possession over the property on the basis of some document executed by the power of attorney of respondent No.3/original defendant No.1. It is contended that they are likely to be affected by the decree that may be passed in the suit and as such, their impleadment in the suit is proper. 8. It is required to be assessed as to whether the third party applicants can be said to be either necessary or proper parties to the suit. Considering the contentions raised in the plaint, there are no averments made in the plaint in respect of any act giving rise to any cause of action against the proposed third party applicant. What is alleged in the plaint is that the defendants, who are impleaded in the suit, have caused interference in the peaceful possession of the plaintiffs over the suit property and as such, it has become necessary for the plaintiffs to seek a restraint order against them. If at all, the third party applicants have acquired any right or entitlement in relation to the property, they may have to prove their case independently and they cannot be permitted to seek relief in a suit instituted by the plaintiffs. When no relief is claimed against the third party applicants, they are not likely to be affected by the decree 7 that would be passed in the suit. 9. Considering the contentions raised by the original plaintiffs and considering the nature of claim raised in the suit, it cannot be said that the third party applicants are either necessary or proper party to the suit. The plaintiffs herein have specifically averred that the third party applicants are not likely to be affected by the decree that may be passed in the suit and that the third party applicants may be required to establish their claim independently. In this view of the matter, the order passed by the trial court, directing impleadment of the third party applicant is required to be quashed and set aside. 10. The petition succeeds. The impugned order dated 16/7/2009 below Exhibit 187 passed in R.C.S. No. 100/2010 is quashed and set aside. Rule made absolute accordingly with no orders as to costs. ( R. M. BORDE) JUDGE grt/wp