gst 1 wp317.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 317 OF 2011. Mahalsa Enterprises through Sou. Sarala Raju Patil ... ... ...Petitioner. V/s Vishwanath Bhau Gharat & Ors. ... ... ... ..Respondents. Mr.G.S.Godbole, Adv. For the petitioner. Mr.H.G.Wakshe, Adv. For R.Nos.1 to 4. Mr.R.S.Datar, Adv. For R.No.12. CORAM: B.R. GAVAI, J. 13th April, 2011 PC: By way of present petition the petitioner original plaintiff challenges the order dated 21.9.2010 vide which the learned Civil Judge, Senior Division, Panvel has allowed the application filed by the present petitioner-respondent No.12 for impleading him as party-defendant in Spl.Civil Suit No.78/10. 2. The petitioner has filed a suit against defendant Nos. 1 to 11 for specific performance on the basis of agreement entered into between defendants 1 to 8 with the petitioner. In the said suit an application has been filed by the respondent No.12 contending that the said respondent had filed Special Civil Suit No.76/08 against the persons who had executed an agreement of sale with the petitioner. It was further contended that the said Special Civil Suit No. 76/08 was decreed on 25.2.2010. It was therefore contended that the said respondent was a necessary party. The application was resisted by the present petitioner. The application is allowed. Hence the present writ petition. 2. Mr.Godbole, learned counsel appearing on behalf of the petitioner submits that the plaintiff is a dominus litis and the learned trial Court by allowing the application of respondent No.12 has permitted the suit which was basically only for specific performance to be converted into a suit wherein complicated issues including the title of respondent No.12 would also be involved. Learned counsel relies on a judgments of the Apex Court in the case gst 2 wp317.11.sxw of Razia Begum Vs. Sahebzadi Anwar Begum & Ors., AIR 1958 SC 886, Kasturi Vs. Iyyamperumal & Ors., (2005) 6 SCC 733, Anil Kumar Singh Vs. Shivnath Mishra @ Gadsa Guru, (1995) 3 SCC 147 and Bharat Karsondas Thakkar Vs. M/s.Kiran Construction Co. & Ors., CDJ 2008 SC 681. 3. Mr.Datar, learned counsel for the respondent No.12 submits that respondent No.12 is directly and vitally interested in the lis between the petitioner and respondent Nos. 1 to 8. He submits that in the said suit which is for specific performance on the basis of agreement entered into by defendant Nos. 1 to 8 in favour of the petitioner, would vitally and directly affect the rights of the present petitioner which has been crystallized in his favour in view of decree passed in a suit between him and defendant Nos. 1 to 8. Learned counsel relies on a judgments of the Apex Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr., 2005 (5) Bom.C.R 690 and Sumtibai & Ors. Vs. Paras Finance Co., (2007) 10 SCC 82. 4. The scope of interference by this Court in its extra ordinary jurisdiction under Article 227 of the constitution of India is very limited. The jurisidction vested in the trial Court under Order 1 Rule 10 is discretionary jurisdiction. Unless it is found that discretion exercised by the trial Court has been exercised perversely it will not be permissible for this Court to interfere with the same. In so far as the judgment of the Apex Court in the case of Razia Begum (supra) is concerned the judgment delivered on behalf of majority view in para 14 observes thus: “14.(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation.” It would thus clearly be seen that the Apex Court in the said case has held that for directing a party to be added as party-defendant he should have direct interest as distinguished from commercial interest in the subject matter of gst 3 wp317.11.sxw litigation. In so far as the judgment of the Apex Court in the case of Kasturi (supra) is concerned, in the said case a suit for specific performance was filed. The parties sought to be impleaded were claiming a title in the suit property. In that view of the matter, the Apex Court found that if the said respondents are added or impleaded in the suit scope of the suit for specific performance of the contract shall be enlarged from the suit for specific performance to a suit for title. It was specifically found by the Apex Court that the said respondents were setting up their independent claim of title. In so far as the judgment of the Apex Court in the case of Anil Kumar Singh (supra) is concverned, in the said suit son of the original plaintiff wanted to implead an additional party on the ground that Shivnath Mishra the Vendor had colluded with his son and obtained a collusive decree and as such they had become co-sharer of the property. The Apex Court found that the person who was sought to be impleaded by the plaintiff was having interest on the basis of independent decree and therefore was not necessary or proper party so as to factually and completely adjudicate upon and settle all questions involved in the suit. It is to be noted that in the said case an application was filed by the plaintiff for impleading persons who according to him had acquired the interest in the property subsequent to the filing of the suit. In so far as the case of Bharat Karsondas Thakkar (supra) is concerned, in a suit for specific performance filed by respondent No.1 the parties were impleaded and the suit for specific performance was sought to be converted into a suit which in effect challenged the consent decree obtained by the appellant, who had approached the Apex Court. 5. It can thus be clearly seen that in the aforesaid case the suits which were simply for specific performance by way of addition of parties were being converted into suits for title etc. and in those premises the Apex Court held that the impleadment was not permissible. In the present case undisputedly for the very land regarding which a suit for specific performance has been filed by the plaintiff-petitioner against defendant Nos. 1 to 8 on the basis of agreement gst 4 wp317.11.sxw of sale, there is admittedly a decree passed by the Competent Court in a suit between respondent No.12 and defendant Nos. 1 to 8 herein. The Apex Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr., 2005 (5) Bom.C.R. 690 has observed thus: “16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the su it is substantial and not just peripheral. A transference pendente lite to the extent he has acquired interest from the defendant is vitally interest in the litigation, whether the transfer is not of entire interest of the defendant, the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII, Rule 10 an aliencee pendente lite may be joined a party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an aliencee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation: he is entitled to be herd in the matter on the merits of the case.” The Apex Court has clearly held that the Court in such matters has discretion which must be exercised judicially and an aliencee would ordinarily be joined to enable him to protect his interest. In the case of Sumtibai & Ors. (supra) the Apex Court in para 14 has observed thus: “14. In view of the aforesaid decisions we are of the opinion that gst 5 wp317.11.sxw Kasturi case is clearly distinguishable. In our opinion it cannot b laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.” It can thus clearly be seen from the observations of the Apex Court that if a party can show fair interest in title he can certainly file an application for impleadment. It has been further observed that a contrary view thereto would lead to multiplicity of litigation. In the present case it cannot be said that the respondent No.12 has no semblance of right. He is armed with a decree passed by the Competent Court in his favour with respect to same property in respect of which suit has been filed by the present petitioner. In that view of the matter it cannot be said that discretion which has been exercised by the learned trial Court has been exercised in perverse manner so as to warrant interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India. Writ petition stands dismissed. 5. At this stage Mr.Godbole, learned counsel on behalf of the petitioner requests for extension of interim protection granted by this Court for a further period of four weeks from today. 6. Mr.Datar, learned counsel for respondent opposes the same. He submits that there is an order of status quo operating in favour of petitioner passed by the learned trial Court and therefore if the proceedings before the trial Court are stayed that will operate as continuation of status quo against the petitioner. However in the interest of justice I am inclined to continue the protection which was granted for a period of four weeks from today.