1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION (Z) NO. 808 OF 2011 IN LETTERS PATENT APPEAL NO.105 OF 2011. Zulqarnain Saifi ..Vrs.. Dhirajlal Sangani and others ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ( Mr. B. N Mohta,Advocate for the appellant. Mr. J. J. Chandurkar, Advocate for the respondent Nos. 1 to 3.) -0-0- CORAM : B. P. DHARMADHIKARI & P. D. KODE, J J. DATE : NOVEMBER 22, 2011. The appellant/tenant is challenging the rejection of his writ petition filed under Articles 226 and 227 of the Constitution of India. In Writ Petition the challenge was to Judgment delivered by the Adhoc Additional District Judge, Amravati in Appeal proceedings and Judgment of 3rd Joint Civil Judge, Junior Division, Amravati in Regular Civil Suit No. 36 of 1996. 02) Mr. Chandurkar, learned Counsel appearing for the respondents, has pointed out that as neither the Appellate Court nor the Trial Court were joined as parties 2 and dispute involved is purely of a private and civil nature, present Letters Patent Appeal is not maintainable. 03) Mr. Mohta, learned Counsel for the appellant points out that the petition as filed before the learned Single Judge was under Article 226 and 227 of the Constitution of India and therein the prayer was to issue either Writ of Certiorari or Writ of Mandamus. He invites attention to the Civil Application (Z) No.808 of 2011, to urge that in Letters Patent Appeal the prayer is to permit amendment and to implead the trial Court and the Appellate Court as parties respondents. He states that amendment is sought in the memo of Appeal and also in the memo of Petition as filed before the learned Single Judge. He is relying upon the Judgment of Hon’ble Supreme Court reported in AIR 1999 Supreme Court, 976 (Savitridevi .Vrs. District Judge, Gorakhpur) to urge that the Hon’ble Supreme Court has held that the Judicial Officers disposing of civil proceedings need not be joined as party respondent. 04) Mr. Chandurkar, learned Counsel for the respondents, opposes the application. According to him, by allowing such application it cannot be presumed that the provisions of Article 226 and 227 of the Constitution of India were properly invoked before the learned Single Judge. He is relying upon the Judgment of Hon’ble Apex Court, reported in 3 AIR 1963, Supreme Court, 786 (Udit Narain Singh Malpaharia .Vrs. Additional Member Board of Revenue, Bihar and another), the larger Bench Judgment of Hon’ble Apex Court in 1968 MH.L.J. NOC 1 (Muhammed Enamul Haque .Vrs. Muhammad Hussain) and the Judgment of full Bench of this Court reported in 2011 (5) MH.L.J., 193 (Ramchandra Dagoji Rangari through Lrs. Smt Lilabai Ramchandra Rangari and others. Vrs. Vishwanath Champat Naik and another ) . In addition, he also seeks the support of the Judgment of full Bench, reported in 2011 (2) Mh.L.J. 916 (Advani Oerlinkon Ltd .Vrs. Machindra Govind Makasare and others) and the Judgment of the Hon’ble Supreme Court in Shalini Shetty ..Vrs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 = 2010 (7) SCALE 428. 05) In the light of the Judgment reported in (Udit Narain Singh Malpaharia .Vrs. Additional Member Board of Revenue, Bihar and another) and (Muhammed Enamul Haque .Vrs. Muhammad Hussain) (cited supra) as followed by the learned full Bench the Judgment reported in (Ramchandra Dagoji Rangari through Lrs. Smt Lilabai Ramchandra Rangari and others. Vrs. Vishwanath Champat Naik and another ) (cited supra), we find that the Letters Patent Appeal as filed 4 is not tenable. The provisions of Article 226 of the Constitution of India were not properly invoked and the Writ of Certiorari could not have been issued in the absence of the Court as parties. In this situation, Letters Patent Appeal is not maintainable. 06) It is apparent that the prayer in Civil application that leave to amend the memo of petition as prayed is misconceived as Letters Patent Appeal itself is not tenable. We, therefore, reject the said civil application. Letters Patent Appeal stands disposed of as not maintainable with liberty to the appellant to take such steps as are open to him in law. JUDGE JUDGE Deshmukh