1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.736 OF 2008. 1. Shri Tholu Gurco Gaonkar Major of age, married, Agriculturist and his wife 2. Smt. Rukmawati Thulu Gaonkar, Major of age, Housewife, Both residing at House No.B-225, Assali, Shristhal, Canacona Goa. .. Petitioners Versus 1. Shri Ramesh Yeshwant Gayak Major of age, married, Businessman, and his wife. 2. Smt. Vasanti Ramesh Gayak, Major in age, married, housewife Both resident of House No.197, Near Malikarjun Temple, Shristal, Canacona, Goa. 3. Smt. Pushpa Yeshwant Gayak Major of age,married, housewife, And her husband 4. Shri Babusso Gayak Since deceased, through legal heirs: 4a. Mr. Kishor B.Kankonkar, son, major of age, 4b. Mr. Kiran B.Kankonkar, Son, major of age, 4c. Smt. Shalan A.Hornekar, Daughter,major of age,and All residents of Shristal, Canacona-Goa. .. Respondents 2 Mr. S. D. Padiyar, Advocate for the petitioners. Coram :- A. P. LAVANDE, J. Date of reserving the Order :- 8 th December, 2008. Date of Pronouncing the Order : - 11 th December, 2008. ORDER : 1. Heard Mr. Padiyar,learned Counsel for the petitioners. 2. By this petition, the petitioners challenge the order dated 10.10.2008 passed by Ad hoc District Judge-I, South Goa, Margao in Regular Civil Suit No.128/2005 dismissing the application under Order I, Rule 10(2) and Order VI, Rule 17 of Civil Procedure Code. 3. The petitioners are the original plaintiffs in Regular Civil Suit No.102/2000 filed against the respondents seeking declaration, permanent injunction and other consequential reliefs. By the decree dated 28.10.2005, the Trial Court dismissed the suit against the petitioners. The plaintiffs preferred Regular Civil Appeal No.128/2005. 4. In the suit, the respondents / defendants had taken the plea that the suit was bad for non-joinder of brother of plaintiff No.1 by 3 name Ganesh Gaonkar, two married sisters and also legal heirs of Vithoba Kusdo Gaonkar from whom the plaintiffs derived the right in the suit property. The Trial Court held that the suit was liable to be dismissed on account of non-joinder of necessary parties. During the pendency of the appeal, the petitioners filed the above application seeking to join 17 parties as plaintiffs on the ground that they were necessary parties. The application was opposed by the defendants / respondents and by the impugned order, the Lower Appellate Court dismissed the application holding that in spite of raising the point of non-joinder of necessary parties in the written statement, the appellants had not joined them in the suit. The Lower Appellate Court also held that the appellants had not given any reason as to why these persons were not added as a parties to the suit during the pendency of the suit. The Lower Appellate Court held that the appellants having slept over the right, now at the appellate stage, cannot be allowed to add parties in the suit and consequently, dismissed the application. 5. Mr. Padiyar, learned Counsel appearing for the petitioners submitted that the parties proposed to be added, are necessary parties and they are liable to be joined as plaintiffs since their presence is necessary for effective decision of the issues involved in the suit. According to the learned Counsel, the Lower Appellate Court has not exercised jurisdiction in accordance with well settled principles of law 4 and, therefore, the impugned order is liable to be set aside. 6. In support of his submission, Mr. Padiyar relied upon the judgment of the Apex Court in Amit Kumar Shaw Versus Farida Khatoon reported in (2005) 11 Supreme Court Cases 403 and Motoi Mia Versus Abdul Haque reported in AIR 1984 Gauhati 77. 7. Having considered the submissions made by the learned Counsel for the petitioners and having perused the record and the judgments relied upon, I find no merit in the present petition. In my considered opinion, the reasons given by the Trial Court dismissing the application, which have been mentioned above, cannot be faulted. In spite of specific objection having been taken by the defendants in the suit, the plaintiffs chose not to add the persons mentioned in the application in the suit and only after the decree was passed against the plaintiffs, an application was filed to join 17 persons as plaintiffs. There is absolutely no reason as to why these persons were not joined as the plaintiffs in the suit during pendency of the suit. The conduct of the petitioners clearly disentitles them from invoking extraordinary remedy under Articles 226 and 227 of Constitution of India. In so far as the authorities relied upon by Mr. Padiyar are concerned, the factual situation in both the judgments, is entirely different and therefore, these authorities do not advance the case of the petitioners. 5 8. In view of the above, I find that the petitioners have not made out any case for the admission of the petition and hence, the petition is summarily rejected. A. P. LAVANDE, J. SMA