IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 495 OF 2009 TRACY COURT FLAT OWNERS ASSOCIATION THROUGH PRESIDENT ... Petitioner Versus SHRI. JUDE SODDER AND ANR., ... Respondents Mr. S. Vales, Advocate for the Petitioner. Mr. S.D. Lotlikar, Senior Advocate with Ms. G. Xettigar for the Respondents. Coram:- R. M. SAVANT, J. Date:- 7th November, 2009 P.C. This Petition takes exception to the Order dated 19/01/2009 passed by the Civil Judge Junior Division, "E" Court, Mapusa by which Order, three applications i.e Exhibit-10 and Exhibit-20 filed by the defendants and Exhibit-26 filed by the plaintiff came to be disposed off. 2. The petitioner herein is the original plaintiff and has filed Regular Civil Suit No. 129/2007/E in the capacity of Tracy Court Flat Owners Association for permanent injunction, against the defendants in respect of various facilities which the plaintiff's claim, that they are entitled to, as they are flat purchasers from the defendants. The defendants herein are the Builders and Developers and are also, a leasing Company concerned with the property in question. 3. In the said suit the defendants filed a counter claim that certain persons who are the members of the plaintiff association owe to Defendant No. 1 jointly and severally a sum of Rs. 8,38,735.45 plus interest @ 18% per annum towards several expenses borne by the Defendant No. 1 towards the maintenance of the said Tracy Court premises. 4. The defendants in the said suit filed an application for rejection of the plaint, being Exhibit-10, under Order VII, Rule 11 of the Civil Procedure Code and Exhibit-20, for addition of parties under Order I, Rule 10. Whereas, the plaintiff filed an application at Exhibit-26 under Order VIII, Rule 6C of the Civil Procedure Code for exclusion of the counterclaim of the defendants. 5. The justification for each of the applications was mentioned by the plaintiff and the defendants. The sum and substance of the case, in so far as applications filed by the defendants are concerned, is that, it is the case of the defendants that the suit filed by the plaintiff was not maintainable on the ground that there was no privity of contract between the plaintiff and the defendants. 6. So far as addition of parties are concerned i.e Exhibit-20, the case of the defendants is that, the said addition was necessary in the suit, as there are certain amounts which Defendant No. 1 claims from the plaintiff and the said parties jointly and severally. In so far as plaintiffs are concerned they filed the application Exhibit-26 on the ground that the counterclaim filed by the defendants is not connected with the subject matter of the suit. 7. The Trial Court disposed off all the three applications together by the impugned Order, the Trial Court, rejected the application at Exhibit-10 filed by the defendants and Exhibit-26 filed by the plaintiff and allowed application Exhibit-20 filed by the defendants. 8. The gist of the reasoning of the Trial Court is that, the counter claim is connected with the subject matter of the said suit as the said counter claim is in respect of the sinking fund in respect of which the plaintiff has also made a grievance. The Trial Court therefore held that the counter claim has a connection with the subject matter of the suit. So far as, addition of parties are concerned, the Trial Court relied upon a judgment of this Court reported in 2006(5) Bom.C.R. 383, in the case of Oberlino Cirilo Sanches and Others Versus Momento Vaz and Another. Wherein, it is held that addition of new parties is permissible by way of counter claim. In the said judgment, a learned single Judge of this Court, has held that Rule XV of Order VIII clearly permits addition of parties. 9. Since there is no challenge by the defendants in respect of the Order rejecting Exhibit-10, this Court, need not go in to the said aspect of the matter. The Trial Court has issued directions to transfer the records and proceedings in the present suit to the Court of Civil Judge Senior Division, Mapusa, as the counter claim is beyond the pecuniary jurisdiction of the said Court. 10. It is sought to be contended on behalf of the petitioner herein that learned Judge has erred in relying on Order VIII, Rule XV to allow the addition of parties, relying upon the notification dated 10/02/1987, issued by the Law Department, Government of Goa, it is contended that Order VIII, Rule XV has no application in so far as the State of Goa is concerned on account of the fact that the same is not notified, which is a requirement under Sections 122 and 131 of the Civil Procedure Code. 11. It is further contended that, the Trial Court has erred in allowing the addition of parties as the application for the same has been filed to procrastinate the suit, as it is impossible to serve the newly added parties, as some of them are abroad. The learned Counsel, therefore submits that the application has been wrongly allowed. 12. So far as, Order VIII is concerned, Rule 23 to 36 were substituted incorporating the 3rd party procedure. Obviously, reading of the said notification indicates that, there were Rules preceeding Rule 23, and therefore it cannot be said that Rule 15 did not exist in so far as the State of Goa is concerned. No direct notification has been produced by the petitioner to show that Order VIII, Rule 15 is not applicable. It seems that the learned Counsel wants to rely on the said notification to submit that since in the said notification there is no mention of Rule 15 impliedly therefore the said Rule is not applicable in the State of Goa. 13. The said issue raised on behalf of the petitioner need not detain this Court, as parties who are to be joined, (plaintiff Nos. 2 and 18) are the flat owners in the suit property with which the plaintiff is concerned. In fact, the learned Counsel for the petitioner has fairly conceded that some of them are the members of the petitioner's association and therefore even assuming that Order VIII Rule 15 is not applicable, the Court could have allowed the said application taking into consideration the counter claim. 14. In so far as the 2nd contention of the petitioner is concerned, the suit has been filed on account of the fact that the plaintiffs/members have been denied basic amenities like water, use of the swimming pool etc. The defendants have filed a counter claim, as plaintiffs jointly and severally owe an amount of Rs.8,38,735.45 plus interest @ 18% per annum. The Trial Court has considered the said fact and also considered that the counter claim also concerns the sinking fund in respect of which the plaintiff has also a grievance. In my view, therefore, the counter claim cannot be said to have no relation with the subject matter of the suit. Since parties to be added are the flat owners in the suit property with which the plaintiff is concerned. The plaintiff can very well represent the parties by accepting the service on their behalf, therefore, the submission of the learned Counsel that the suit would be unduly delayed cannot be accepted. The plaintiffs if desirous of prosecuting the suit expeditiously, may therefore take such steps as necessary so that the hearing of the suit is expedited. 15. Having considered the impugned Order, in my view, there is no illegality or infirmity in the said order for this Court to interfere in its writ jurisdiction. The Writ Petition is accordingly dismissed. 16. The learned Counsel for the petitioner draws my attention to Order dated 21/04/2009 by which Order, Trial Court has directed that the application for temporary injunction will be considered after the added parties are served. In case the plaintiff i.e. Tracy Court Flat Owner's Association accepts service on behalf of the said plaintiffs 2 to 18, the Trial Court to hear the application for temporary injunction expeditiously. 17. In so far as, the last direction is concerned, i.e the Defendants to amend the said suit. Learned Counsel for the petitioner states that the plaintiff would amend the cause title of the said suit, to which Mr. Lotlikar has no objection. The direction of the Trial Court, so far as the amendment to be carried out is concerned, stands modified to the aforesaid extent. Amendment to be carried out within 4 weeks from date. 18. Writ Petition dismissed. R. M. SAVANT, J. EV