cw-2275/06-LRs of late Ganesh Mal Vs Addl. District Judge, Bali & Ors. : Order dt:26.3.08 1/5 S.B. CIVIL WRIT PETITION NO.2275/2006 LRs of late Ganesh Mal Vs. Addl. District Judge, Bali & Ors. Date : 26.03.2008 HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Suresh Shrimali for the petitioner. Mr. A.K. Khatri for the respondents. --------- 1. Heard learned counsels. 2. This writ petition has been filed challenging the order of the trial court dated 4.4.1998 whereby the learned trial court allowed the amendment of the written statement filed by the defendant. The amendment sought in the written statement is to introduce one Chhogmal S/o Shri Bhagwanji Suthar claiming to be the partner of the firm M/s Ganeshmal Bhagwanji & Company and, therefore, in the present suit for specific performance filed by the plaintiff Ganeshmal against the defendant Mangi Lal, the said amendment was sought to introduce the pleading that the agreement to purchase the suit property in question was with the partnership firm and, therefore, the said partner Chhogmal was also necessary and proper party in the suit. cw-2275/06-LRs of late Ganesh Mal Vs Addl. District Judge, Bali & Ors. : Order dt:26.3.08 2/5 3. Being aggrieved by the said order of the learned trial court, the plaintiff has approached this Court on the ground that the suit property was agreed to be sold by the defendant Mangi Lal to the plaintiff Ganesh Mal and stated that Chhogmal a third party could not be introduced in the suit and, therefore, the amendment in the written statement sought for the aforesaid purpose was wrongly allowed by the learned trial court. 4. The learned counsel for the petitioner has submitted that against this order earlier a revision petition was filed in this Court which however came to be dismissed in view of the Supreme Court decision in the case of Shiv Shakti Cooperative Housing Society, Nagpur Vs. Swaraj Developers and others – 2003 (6) SCC, 659 and with the dismissal of the said revision petition No.576/1998 on 17.11.2003 by this Court, the petitioner filed the present writ petition. 5. The learned counsel for the petitioner Mr. Suresh Shrimali relying upon the decision of the Supreme Court in Kasturi Vs. Iyyamperumal and Ors. - 2005 AIR SCW 2368 submitted that in a suit for specific performance of contract for sale a third party / stranger claiming independent title and possession over the suit cw-2275/06-LRs of late Ganesh Mal Vs Addl. District Judge, Bali & Ors. : Order dt:26.3.08 3/5 property is neither necessary nor proper party and, therefore, not entitled to join as party defendant in the suit. He has also relied upon the judgment of this Court in Maga Ram & Ors. Vs. A.D.J., Bali, Pali & Ors. - S.B. Civil Writ Petition No.59/2004 decided on 9.7.2007 in which this Court held that merely because the petitioner happens to allege that the title of the property originally belongs to the partnership firm even though it is purchased in the name of plaintiff and with the compromise of some other persons, who are not the plaintiff, in these circumstances, it is not necessary to allow the petitioner to incorporate this pleading as that pleading cannot be said to be necessary for determining the real question in controversy being a trespasser or is in possession of the document dated 25.10.1992 said to have been executed by Ganeshmal. his matter arose between the same parties although in a different context. 6. These submissions are opposed by the learned counsel for the respondent Mr. A.K. Khatri, who submits that the property in question was agreed to be sold to the partnership firm and the amount was paid out of the fund of the partnership, therefore, the said person Chhogmal being a partner of the said firm is a necessary party and, therefore, amendment in the written statement allowed by the learned cw-2275/06-LRs of late Ganesh Mal Vs Addl. District Judge, Bali & Ors. : Order dt:26.3.08 4/5 trial court by the impugned order is perfectly justified and the present writ petition deserves to be dismissed. 7. Having heard learned counsels this Court is of the opinion that the leaned trial court has erred in allowing the amendment in the written statement to introduce the pleadings which are directly in the conflict of pleadings already made in the original statement filed by the defendant which is Annex.2 on the record. It appears that the said person Chhogmal, who claims to be the partner in the firm is also litigating with the said plaintiff Ganeshmal S/o Bhagwanji in other forums as well. Be that as it may, the firm and the litigation in which the parties might have indulged is a different matter altogether. The question before this Court is whether the amendment in the pleading namely written statement is allowed by the learned trial court is justified or not. From the record it appears that the property in question was agreed to be sold by the plaintiff Ganeshmal and not for and on behalf of the firm M/s Ganeshmal Bhagwanji & Company but in his individual capacity. No question of deciding the title of the said property arises at this stage. The amendment sought in the written statement ex facie appears to be in conflict with the written statement already filed by the defendant and cw-2275/06-LRs of late Ganesh Mal Vs Addl. District Judge, Bali & Ors. : Order dt:26.3.08 5/5 such contradictory pleas cannot be allowed by way of amendment of the written statement. The reliance placed by the learned counsel for the petitioner on the aforesaid judgments is, therefore, apt and deserves to be accepted. 8. In view of this, the present writ petition is allowed and the impugned order of the learned trial court dated 4.4.1998 is set aside. No costs. [ DR. VINEET KOTHARI ], J. item No.21 babulal/-