1 WP-4945-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4945 OF 2011 Kedu Ratan Aher and anr. ..Petitioners Vs. Bahusaheb Bapurao Deshmukh and ors. ..Respondents -- Mr.A.V.Anturkar i/b.Mr.S.B.Deshmukh, for the petitioners. Mr.M.S.Karnik i/b.Mr.G.R.Agrawal, for respondent no.7. -- CORAM : R.G.KETKAR, J. DATE : 10 th OCTOBER, 2011 P.C.: Heard Mr.A.V.Anturkar, learned counsel for the petitioners and Mr.M.S.Karnik, learned counsel for respondent no.7. 2] The petitioner-original plaintiff has instituted this petition challenging the judgment and order dated 28 th March, 2011 below exhibit 147 in Special Civil Suit No.60 of 1994 passed by the learned 2 WP-4945-11.sxw 7 th Joint Civil Judge, Senior Division, Nashik. By that judgment, learned trial Judge rejected the application made by the petitioners for deleting or striking out name of respondent no.7 herein – original defendant no.5 from the suit. The parties shall hereinafter be referred as per their status in the trial Court. 3] The plaintiffs instituted Special Civil Suit No.60 of 1994 on 10 th February, 1994 for declaration that it be declared that the plaintiffs have become owner by adverse possession of the property in dispute. On 16 th February, 1994, the plaintiffs filed application for injunction restraining the defendants from creating third party interests. On 24 th February, 2004 the learned trial Judge issued injunction restraining the defendants from creating third party interests. It is the case of the plaintiffs that despite this injunction order, defendant nos.1 to 3 entered into development agreement and executed power of attorney in favour of defendant no.5. In view of this, they took out application on 3 rd May, 2002 under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (for short “C.P.C.”). On 12 th February, 2009 the trial Judge passed order striking out the defence of the defendants no.1 to 3. Aggrieved by that order, 3 WP-4945-11.sxw defendant nos.1 to 3 preferred Appeal from Order No.102 of 2010 which was permitted to be withdrawn with liberty to raise all the grounds should there be occasion to defendant nos.1 to3 to prefer Regular Appeal. It was made clear that defence of defendant nos.1 to 3 remained struck off. 4] As noted earlier, on 3 rd May, 2002, the plaintiffs took out application under Order 39 Rule 2A of C.P.C. for taking action against defendant nos.1 to 3 and Shri.L.K.Sonawane. By order dated 22 nd June, 2004, the learned trial Judge directed the plaintiffs to implead Shri.L.K.Sonawane as party defendant in the suit and after filing of say by said Sonawane, the application was to be taken up for further orders. Pursuant to that order, the plaintiffs impleaded Mr.L.K.Sonawane as defendant no.5. The plaintiffs, thereafter, took out the present application on 9 th September, 2010 for deleting name of defendant no.5 from the proceedings. This was resisted by defendant no.5 by filing reply on 8 th October, 2010. After hearing both sides, the learned trial Judge rejected the said application. It is against this order, the petitioners-original plaintiffs have filed this petition. 4 WP-4945-11.sxw 5] In support of the petition Mr.Anturkar contended that the plaintiffs are dominus litis and it is for them to pray for relief against a particular party. He contended that the plaintiffs are not seeking any relief against defendant no.5. Defendant no.5 has impleaded only on account of fact that during the pendency of the suit and despite issuance of injunction, defendant nos.1 to 3 created third party interest in his favour. It was only for the limited purpose of disposal of application under Order 39 Rule 2A of C.P.C., the defendant no.5 was impleaded in the suit. The plaintiffs gave purshis that they do not want to prosecute the application under Order 39 Rule 2A of C.P.C. and therefore, the purpose of continuing defendant no.5 as party defendant comes to an end. He further contended that the defence of defendant nos.1 to 3 was struck off by the learned trial Judge on 12 th February, 2009 which order was confirmed by this Court on 28 th June, 2010 while disposing of Appeal from Order no.102 of 2010. If defendant no.5 is continued, the purpose which original defendant nos.1 to 3 could not achieve on account of their defence being struck off, would be achieved by defendant no.5 through back door method by using pleadings of defendant no.5. It is in these 5 WP-4945-11.sxw circumstances, he prayed that the impugned order deserves to be quashed and set aside. 6] On the other hand Mr.Karnik, learned counsel for the defendant no.5 supported the impugned order. He submitted that the learned trial Judge relying upon the judgment of the Apex Court in the case of Ramesh Hiranand Kundanmal vs. Municipal Corporation, Greater Mumbai, 1992(2) SCC 524 has held that defendant no.5 is a proper party and his presence is necessary for effectively and completely adjudicating the questions involved in the proceedings. 7] I have considered rival submissions made by the learned counsel for the parties. It is not in dispute that during the pendency of the suit while injunction was in operation, defendant nos.1 to 3 entered into a development agreement and executed power of attorney in favour of defendant no.5. It is also not in dispute that the plaintiffs took out application on 3 rd May, 2002 at exhibit 57 for taking action against defendant nos.1 to 3 and defendant no.5 under Order 39 Rule 2A. By order dated 22 nd June, 2004, the leaned trial Judge thought it appropriate to add Shri Sonawane as party defendant and 6 WP-4945-11.sxw adjourn the hearing of that application so as to take appropriate decision after adding Shri Sonawane as party and after considering the say of Sonawane. Accordingly, plaintiffs impleaded Mr.Sonawane as defendant no.5. 8] Subsequently, by order dated 12 th February, 2009, the learned trial Judge allowed the application made by the plaintiffs at exhibit 59 striking out the defence of defendant nos.1 to 3. The said order was challenged in Appeal from Order no.102 of 2010 which was disposed of on 28 th June, 2010 thereby upholding Order of striking off the defence of defendant nos.1 to 3. 9] It is thereafter the plaintiffs took out the present application on 9 th September, 2010 for deleting defendant no.5 from the suit. Perusal of the prayers in the plaint would indicate that the plaintiffs have sought permanent injunction against the defendants, their agents and anyone claiming through them from disturbing their possession. Now it is undisputed that during the pendency of the suit, defendant nos.1 to 3 have entered into a development agreement and entered into power of attorney in favour of defendant 7 WP-4945-11.sxw no.5 on 24 th April, 2002. The learned trial Judge held that defendant no.5, even if is not a necessary party, at any rate, he is a proper party and his presence is necessary to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. 10] I, therefore, do not find that the learned trial Judge has committed any error of law apparent on the face of record in passing the impugned order. It also cannot be said that the impugned order suffers from any perversity. The learned trial Judge rightly came to the conclusion that defendant no.5 is a proper party. Hence, petition fails and the same is dismissed. [R.G.KETKAR, J.]