1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2744 OF 2007 Empee Offset Pvt.Ltd. ..Petitioner. V/s. M/s.Rajesh Paper Products & Ors. ..Respondents. Mr.R.S.Apte with Mr.A.A.Garge for petitioner. Mr.Madhav Jamdar for Respondent Nos. 1 to 3. Mr.S.N.Chandrachood i/b. A.P.Purohit for Respondent No.4. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 12, 2009. DATE : JANUARY 12, 2009. DATE : JANUARY 12, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Jamdar waives notice for Respondent Nos.1 to 3. and Mr.Chandrachood waives notice for Respondent No.4. 4. As short question is involved, Petition is taken up for final disposal forthwith by consent. 2 5. By this Writ Petition under Article 227 of the Constitution of India, the Petitioner/original Plaintiff is questioning the correctness of the order passed by the Civil Judge, Sr.Division, Pune, dated 19th January, 2007 below Exh. 196 in Special Suit No.1133 of 1997. By the said order, the Trial Court not only allowed the application preferred by the Defendant Nos. 1 to 3, but also granted further relief which was not specifically prayed. In the application filed by the Defendant Nos. 1 to 3 Exh. 196 it was prayed that M/s. Sales Pack Bombay Private Ltd. be added as Defendant No.5 in the suit. Instead, the trial Court ordered that the said party be added as Plaintiff No.2. Indeed, the trial Court in paragraph-6 at page 81 has rightly recorded that the Court has ample power under Order 1 Rule 10 of C.P.Code to add or delete any party which is necessary to the suit. The question is when the Defendant Nos. 1 to 3 prayed that the third party be impleaded as Defendant No.5, necessity of impleading the said party as Plaintiff No.2 has not been spelt out by the trial Court, except to observe that it has ample power under Order 1 Rule 10 of C.P.Code to do so. That is not enough. 6. Counsel appearing for the Defendant Nos. 1 3 to 3 was at pains to rely on the observations made in paragraph-7 to 13 of the impugned Judgment. However, none of the statement found therein would indicate the basis for which the Court thought it appropriate to issue direction to implead the third party as Plaintiff No.2 and not Defendant No.5, as prayed by the Defendant Nos. 1 to 3 in the Application Exh. 196. It is not open for this Court to substitute its opinion or to fill in the gap left by the trial Court. The appropriate course in my view therefore, is to set aside the order impugned in this Petition and restore the Application Exh. 196 to the file to its original number to be proceeded further on its own merits by the trial Court. 7. Accordingly, this Petition is allowed. The impugned Judgment and Order is set aside and the Application Exh.196 in Special Suit No. is restored to the file to its original number, to be decided afresh by the trial Court on its own merits in accordance with the law uninfluenced by any observations in the impugned decision or for that matter, the present order. The trial Court shall dispose of the said restored application as expeditiously as possible, preferably within six weeks from the receipt of intimation about present 4 order. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)