1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3943 of 2008 Jagannath Krishnaji Deore .. Petitioner versus Karan Tej Paramount Properties(Pvt) Ltd. And ors .. Respondent ... Mr.P.S.Dani i/b Mr.P.G. Chavan for the petitioner. Mr.S.S. Kanetkar for the respondents. CORAM : A.M.KHANWILKAR, J DATED : 26th August 2008 P.C.: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Kanetkar waives notice for the respondents. As short question is involved, petition is taken up for final disposal forthwith by consent. 3. This writ petition under Article 227 takes 2 exception to the judgement and order passed by the 9th Adhoc Additional District Judge, Pune below Exhibit 41 in Regular Civil Appeal no.318 of 2007. By this order, the appellate court allowed the application preferred by respondent nos.1 and 2 herein for being impleaded as parties to the appeal. The appeal has been filed by the original defendants in respect of decree passed against them in suit for specific performance of the agreement filed by the petitioner. According to the petitioner, although the petitioner had specifically raised the question that the application filed by the respondent nos.1 and 2 at this belated stage in the pending appeal is not bonafide, the appellate court has not dealt with the said aspect at all. Counsel for respondent nos.1 and 2 in all fairness accepts that such finding has not been recorded in the impugned judgement. In so far as question as to whether the subsequent purchaser can be or ought to be impleaded as party to the pending proceeding that is no more res integra. The court below has adverted to reported decisions on the said aspect. My attention has been invited by the counsel for the petitioner to the decisions of the Apex Court in the case of Sanjay Verma Vs. Manik Roy & ors. reported in (2006) 13 SCC 608, and Bibi Zubaida Khatook Vs. Nabi Hassan Saheb & Anr. reported in (2004) 1 SCC 191. 3 4. On the other hand, counsel for the respondent nos.1 and 2 has relied on the observations in paragraph no.5 of the decisions in the case of Dhanalaxmi & Ors. Vs. P. Mohan & Ors reported in 2007 AIR (SC) 1062. It is not necessary to elaborate on that aspect. 5. According to the respondent, the petitioner before this court cannot be heard to complaint about bonafide of respondent nos.1 and 2 as the petitioner is only one of the respondent in the said appeal and not the appellant himself. This argument clearly overlooks that the petitioner is the plaintiff. It is well established position that appeal is continuation of suit. Even though the petitioner is not the appellant himself, but being the plaintiff and is likely to be directly affected by the impleadment of respondent nos.1 and 2, is entitled to question the correctness of the order which is impugned in this petition. Accordingly, this argument does not hold good. 6. The question which ought to have been addressed by the appellate court in the first instance was whether the application filed by 4 respondent nos.1 and 2 is bonafide or otherwise. According to the petitioner, application was not bonafide because in the application respondent nos.1 and 2 have asserted that the suit property is transferred in their favour under sale deed. However, when the respondents were called upon to produce the sale deed, they produced copy of the agreement which appears to be the development agreement and not a sale deed. Besides the petitioner contends that the respondent nos.1 and 2 have entered into the stated transaction at their risk and with full knowledge of the possession about the pendency of the suit in as much as mutation entry was effected indicating pendency of the suit as back as on 13th June 1996 whereas the documents in favour of respondent nos.1 and 2 were executed in the year 2006. Instead of examining this aspect for the first time in exercise of writ jurisdiction, the appropriate course to my mind is to set aside the impugned judgement and to relegate the parties before the appellate court for reconsideration of the application afresh having regard to the settled position after recording the finding on the contention raised by the petitioner that the application filed by the respondent nos.1 and 2 was not bonafide. 5 7. All questions in that behalf are left open to be decided by the appellate court on its own merits. 8. Accordingly, this petition succeeds. Impugned judgement and order is set aside. Instead application Exhibit-41 is restored to the file of the 9th Adhoc District June, Pune for reconsideration on its own merits in accordance with law. No order as to costs. 9. At this stage, counsel for respondent nos.1 and 2 submits that operation of this order be stayed for some time as respondent nos.1 and 2 intend to go in appeal before the Apex Court against this decision. As the request is reasonable, this order not to be given effect for a period of four weeks from today. 10. It is made clear that if no further order is passed by the Apex Court in this regard, the Appellate Court shall proceed to decide the restored Application Exhibit-41 and ensure that the same is finally disposed of not later than 24th October 2008. 12. Parties shall appear before the District Judge on 1st October 2008 when the appellate court 6 shall pass appropriate directions as may be required to ensure that the petition be disposed of within specified time. (A.M.KHANWILKAR, J)