1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1852 OF 2010 SAU SUBHAMMA ANJANAIAH KUNTIMAL AND ORS VERSUS ASHISH TEJMAL MUGDIYA AND ORS ... Shri D.R.Irale Patil, Advocate for the petitioners Shri S.R.Deshpande, Advocate for respondent No.1, Shri M.V.Ghatge, Advocate for respondent No.2 and Shri V.V.Kulkarni Adv. h/f Shri A.S.Bajaj, Adv. for respondent No.3. ... CORAM : S.B.DESHMUKH,J. Dated : 3.3.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. This petition is filed by third party applicants, whose attempt to get themselves impleaded in the pending Special Civil Suit No. 212 of 2009 as party, is not accepted by the trial Court. I am listing some admitted facts and dates herein below :- (A) Petitioner No.1 is wife of respondent No.2. 2 Petitioners 2 and 3 are children of respondent No.2. Petitioner and respondent No.2 on one hand and respondent No.1 on another, have no blood relation. Respondent No.3 is the authority responsible for development, established in accordance with the provisions of law. (B) Plot No.129 situates at N-3 Sector, Cidco, Aurangabad. (C) Respondent No.1 filed Special Civil Suit No.212 of 2009 in the Court of the learned Civil Judge (Senior Division), Aurangabad. Copy of the plaint is on record at Page 39. This suit appears to have been filed on 4.5.2009. It is a suit for specific performance of contract allegedly executed by defendant No.1 in favour of the plaintiff on 4.9.2008 and for damages, in the alternate. (D) Petitioners filed an application under Order I Rule 10 of Code of Civil Procedure in the suit on 17.12.2009. (E) This application for impleadment was at Exhibit 38. After hearing the parties, it came to be rejected by the trial Court on 19.1.2010. Said order is impugned in this writ petition. 3 4. With the assistance of the learned counsel for the parties, I have considered the application filed on behalf of the petitioners I have also considered the order passed by the trial Court. 5. Learned counsel for the petitioners relied upon the judgment of the Honourable Supreme Court in the case of Sumatibai and others Vs. Paras Finances Co. [2007 AIR SCW 6125]. Learned counsel for the petitioners has also made available copy of the judgment of the Honourable Supreme Court (Three Judges' Bench) in the case of Kasturi Vs. Iyyamperumal [2005 (3) Mh.L.J. 1]. It is taken on record and marked Exhibit "X" for identification. Learned counsel for the petitioners submitted that the judgment of the Honourable Supreme Court in the case of Sumatibai (supra) squarely applies to the facts of the case and considering the ratio of this judgment, the order impugned being illegal, needs to be quashed and set aside. 6. Contra to the submissions of the learned counsel for the petitioners, Shri Deshpande, learned Advocate for respondent No.1 submits that the order is legal and proper. According to him, the allotment of the plot is in favour of respondent No.2. Date of agreement amongst respondents 2 and 3 is 24.12.1984. According to him, the commencement certificate for construction has been issued in favour of defendant No.1 by defendant No.3 on 28.11.1985. In substance, according 4 to him, right from the allotment of the plot, execution of the agreement, payment of money etc. is amongst original defendant No.1 and Cidco. Present petitioners have no concern. He, therefore, submitted that original defendant No.1 executed an agreement on 4.9.2008 in favour of the plaintiff. It is a notarized document. In other words, it is not registered with the Sub Registrar of the area concerned. 7. Shri Ghatge, learned Advocate for respondent No.2 / defendant No.1 supports the petitioners, who are seeking impleadment. 8. The trial Court, while rejecting the application, in paragraph No.18 has observed that at this stage, it is not proper to form an opinion whether the suit property is exclusive property of defendant No.1 or whether the suit property is joint Hindu family property of the petitioners. 9. I have given due consideration to the submissions made by the learned counsel for the parties. I have carefully gone through the judgment of the trial Court. The learned counsel for the original plaintiff / respondent No.1 relied upon the judgment of the learned Single Bench of this Court in the case of E.Ajay Kumar Vs. Tulsabai [1973 Mh.L.J. 683]. It has been held in the said case that the nature of the suit for specific performance is limited to the agreement and several pleas that can either defeat or lead to its enforcement or seek any other substituted reliefs alone fall for consideration. The cause of action in such suit is the 5 agreement and its enforceability and in this sense such a suit is circumscribed in scope. The controversy cannot be converted into an entirely different one by adding parties. The person seeking joinder being a total stranger he was not a necessary party. There, stranger / applicant was impleaded by the trial Court as co-defendant against the will of the plaintiff. In paragraph No.3 of the said judgment, it has been observed by the learned Single Bench that the application was filed by one Nandalal in the suit on 2.9.1972 contending that he has interest in the property. Said prayer was opposed by the plaintiff. On the background of these facts, the learned Single Bench, in that case, was of the opinion that in the suit for specific performance, scope is limited and it cannot be converted into an entirely different one by adding the parties. 10. In the case on hand, the plaintiff in the suit is not disputing the relationship claimed by the petitioners on one hand and respondent No.2 on the other. I have considered the ratio of judgments cited on behalf of the parties. The judgment of the Honourable Supreme Court in the case of Sumatibai (supra) records in the nut shell the facts in paragraph No.14. It is observed that the appellants therein are the legal heirs of late Kapurchand. The suit was filed by respondents in that appeal against Kapurchand for specific performance of contract for sale. The allegation was that Kapurchand had entered into an agreement to sell the property in dispute to the plaintiff / respondent. In that agreement, 6 Kapurchand stated that the property in dispute was his self acquired property. During pendency of that proceeding, Kapurchand died and his wife and sons applied to be brought on record as legal heirs. They were impleaded , in view of the application under Order XXII Rule 4 read with Order I Rule 10 of CPC. Their prayer was that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. Said application was rejected and revision was filed by the appellant before the High Court was also dismissed. Thus, the appellants were before the Honourable Supreme Court. It is interesting to note that the judgment of the Three Judges' Bench of the Honourable Supreme Court in the case of Kasturi (supra) was considered by the Honourable Supreme Court and it has been held; "..... In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance or title or interest in the property in dispute...." 11. After considering the judgment cited before this Court, it would be now appropriate to consider the expression or meaning of the 7 word "semblance". It means; "What looks like, the outward appearance of....." (The Concise Oxford Dictionary of Current English, VI Edn. Edited by J.B.Sykes). I have also considered the meaning of word "semble" which means; " It seems, it would appear" (Black's Law Dictionary - VIII Edn. Edited by Bryan A. Garner). 12. I have considered the provisions laid down under Order I Rule 10 of CPC. I have taken into account the facts, pleadings and material brought on record by the parties. I have also noticed the earlier round of litigation i.e. Writ Petition No.5135 of 2009 filed before this Court. Order passed by this Court in the said writ petition is on record in this Writ Petition. In my view, it cannot be said that the present petitioners are busybodies who are trying unnecessarily to protract or obstruct the Special Civil Suit No.212 of 2007. 13. In this view of the matter, if the order passed by the trial Court is assessed, in my view, it requires to be quashed and set aside allowing the application filed by the petitioners seeking impleadment. It is made clear that this Court has not recorded any finding that the petitioners are having any title to the suit property and/or nature of the property is joint Hindu family property. These observations are to be read only restricted to the application for impleadment under Order I Rule 10(2) of CPC. 8 14. In the result, Writ Petition is allowed. Rule made absolute in above terms. The impugned order is quashed and set aside. The application of the petitioners for impleadment is allowed. The petitioners shall be impleaded as defendants in the suit. The learned Judge of the Court below shall decide the suit in accordance with the provisions of law and material brought on record by the parties. No order as to costs. ( S.B.DESHMUKH, J.) ... akl