[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 5915 OF 2007 M/S. LABHA SHUBHAY PROPERTIES LTD. ...PETITIONER. VS. M/S. TRULY CREATIVE DEVELOPERS LTD. AND ORS. ...RESPONDENTS. MR. R.D.SONI I/B. SHRI A.R.SHAKH FOR THE PETITIONER. RM. G.N.SALUNKHE AND SHRI UMESHANAND ADVOCATE FOR THE RESPONDENT NO.1. MR. MAHENDRA GHELANI I/B. M/S. LAW CHARTER FOR THE RESPONDENT NO.2. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : April 24, 2008. : April 24, 2008. : April 24, 2008. P.C. . Heard. Rule made returnable forthwith and heard finally by consent of the parties. 2. This petition impugns the order dated 26th [2] July, 2007 passed by the City Civil Court of Greater Bombay whereby the Chamber Summons taken out by the Applicant to get himself impleaded in the suit as defendants came to be dismissed. 3. Few facts necessary to be cited are that respondent No.1- Developer, who is the plaintiff in the suit had entered into a development agreement with respondent No.2- Society. The Respondent No.1, thereafter entered into a joint venture agreement for development with the present petitioner whereby the petitioner, who was the Applicant in the chamber summons was allowed to carry out construction on plot Nos. T-1 and T-6, which is in portion of the suit property. 4. It is the case of the petitioner that they have invested huge amounts towards construction on the plots and the construction has reached up to the plinth level. The case of the petitioner further is that they are in actual possession of the plot Nos. T-1 and T-6 and that the Trial Court has erred in dismissing their Chamber Summons. It is contended that the petitioner is necessary and proper party in the suit in view of the joint venture agreement entered into by them with [3] the Respondent No. 1, who is the plaintiff in the suit pending in the City Civil Court at Bombay. 5. The City Civil Court suit has been filed by the respondent No. 1 against respondent No.2 -Society and Respondent NO. 3 -S.D. Corporation (Pvt) Ltd. The contention of the learned Counsel for the petitioner is that the petitioner is a necessary and proper party to the suit because their interest would be affected in the event any orders are passed in the suit. The anxiety of the petitioner is that the Respondent No.1, who is the plaintiff in the suit, may enter into some arrangement with the Respondent No. 2-society and the respondent No. 3- S.D. Corporation Pvt. Ltd. and in that event their interest would be vitally affected. It is the contention of the learned Counsel for the petitioner that the Trial Court has not considered the provisions under Order 1 Rule 10(2) of the Code of Civil Procedure in its proper perspective. 6. To support his contentions, the learned Counsel for the petitioner has relied upon the decisions in the cases of (1) CHANDRAKANT DHARMA BHONU VS. PANDURANG CHANDRAKANT DHARMA BHONU VS. PANDURANG CHANDRAKANT DHARMA BHONU VS. PANDURANG RAMCHANDRA RAMCHANDRA RAMCHANDRA DANDEKAR, reported in AIR 2004 BOM 374 (2) DANDEKAR, reported in AIR 2004 BOM 374 (2) DANDEKAR, reported in AIR 2004 BOM 374 (2) GULAB GULAB GULAB BABUSAHEB BARGIRI VS. EXECUTIVE ENGINEER BABUSAHEB BARGIRI VS. EXECUTIVE ENGINEER BABUSAHEB BARGIRI VS. EXECUTIVE ENGINEER [4] M.S.E.B. M.S.E.B. M.S.E.B. AND ORS. reported in 2001 (1) Mh. L.J. 63 AND ORS. reported in 2001 (1) Mh. L.J. 63 AND ORS. reported in 2001 (1) Mh. L.J. 63 and and and (3) STATE BANK OF INDIA VS. PODAR MILLS LTD. (3) STATE BANK OF INDIA VS. PODAR MILLS LTD. (3) STATE BANK OF INDIA VS. PODAR MILLS LTD. reported reported reported in 1998 MH.L.J. 907. in 1998 MH.L.J. 907. in 1998 MH.L.J. 907. 7. The learned Counsel for the respondent No. 1, on the other hand has submitted that the petitioner is a financer and has assisted the respondent No.1 in various other projects. It is contended that the petitioner has constructed some shops without permission which ultimately resulted in respondent No.1 terminating the joint venture agreement. It is submitted by the learned Counsel for the respondent No.1 that the Respondent No. 2-Society was interested in getting the respondent No. 3- S.D.Corporation Pvt.Ltd. into the project and that, therefore, the dispute before the City Civil Court was filed by them making the Respondent NO.2- Society and Respondent NO. 3-S.D. Corporation as party- defendants to the Suit. It is his contention that Respondent No. 3- S.D. Corporation had approached the Respondent No.2- society directly and that, therefore, the suit came to be filed and that the Respondent NO. 1 is in possession of the property in question by virtue of Section 53A of the Transfer of Property Act, 1882. It is vehemently argued that looking to the nature of the suit which is [5] simplicitor a suit for injunction to restrain the defendants from disturbing or interfering with the possession of the Respondent No. 1 without due process of law, there is no question of the petitioner being added as party to the suit, as the petitioner is not necessary and proper party. It is further submitted that in the Application for being added as party defendant, there is no averment regarding apprehension about settlement between the parties in the suit. It is further submitted by the learned Counsel that the learned Trial Judge has exercised his discretion judiciously and has come to the conclusion that the applicant is not necessary and proper party to the suit. The learned Counsel further submitted that the Respondent No. 1 being Plaintiff in the suit is a dominus litis and cannot be saddled with another defendant in the suit and cannot be forced to impleaded the petitioner as party defendant to the suit. The learned Counsel submitted that it is not as if the suit cannot be effectually decided without making the petitioner-applicant as party defendant to the suit. The learned Counsel argued that no case is made out for interference with the impugned order of the Trial Court and urged that the petition be dismissed. [6] 8. The learned Counsel for Respondent No.1 has invited my attention to Order 1 Rule 3 of the C.P.C. which reads as follows :- "O.1. "O.1. "O.1. R.3 : Who may be joined as defendants.- R.3 : Who may be joined as defendants.- R.3 : Who may be joined as defendants.- All persons may be joined in one suit as defendants where - (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise." 9. The learned Cousnel for RespondentNO.1 has relied upon the cases LUIS ROBERTO VAZ VS. ROQUE LUIS ROBERTO VAZ VS. ROQUE LUIS ROBERTO VAZ VS. ROQUE SILVESTRE SILVESTRE SILVESTRE VAZ AND ANR. reported in AIR 1988 BOM. 300 VAZ AND ANR. reported in AIR 1988 BOM. 300 VAZ AND ANR. reported in AIR 1988 BOM. 300 and JIVANLAL DAMODARDAS WANI VS. NARAYAN UKHA SALI JIVANLAL DAMODARDAS WANI VS. NARAYAN UKHA SALI JIVANLAL DAMODARDAS WANI VS. NARAYAN UKHA SALI reported reported reported in AIR 1972 BOM. 148 in AIR 1972 BOM. 148 in AIR 1972 BOM. 148 to support his contentions. [7] 10. The learned Counsel for Respondent No.2 supported arguments of the Ld. Counsel for the Respondent No.1. 11. Considering the facts and circumstances of the case, I am of the view that the petitioner is not a necessary or proper party to the suit. The Respondent NO.1, who is the plaintiff sin the suit is dominus litis and he cannot be forced to add parties as defendant unless the court comes to the conclusion that they are necessary parties and it is exceptional case where such order is required to be made. Undisputedly, the suit pending in the City Civil Court is a suit simplicitor for injunction and there is no prayer for declaration. There is no relief claimed as against the petitioner in that suit and their impleadment is not necessary for effectual disposal of the suit. Even assuming for the sake of argument that the petitioner is affected in some way by the outcome of that suit that would not in itself make him a necessary party. At the highest he could be said to be a proper party, but that does not entitle him to be impleaded as party defendant to the suit. The observations in paragraph 5 of the decision in the case of JIVANLAL DAMODARDAS WANI [8] (Supra) are relevant and are reproduced hereunder :- " 5. A necessary party is, as has been stated in Order 1, Rule 10(2) Civil P.C. itself a party whose addition is absolutely necessary in order to enable the Court to adjudicate effectually and completely on the matter in controversy between the parties. That has been interpreted in any opinion rightly, to mean that no decree could be passed in the suit without affecting the rights of the party who is sought to be added and the presence of that party is necessary for an effectual adjudication of the questions involved in the suit. It is only when both those conditions are fulfilled that a party could be said to be a necessary party to a Suit.". 12. I am informed that the petitioners have already invoked the arbitration clause of the Agreement between them and Respondent No. 1 and in the proceedings before the arbitrator the petitioners have claimed damages in the alternative to other reliefs claimed by them. It is further open to the petitioners to file a separate suit if they so desire. [9] 13. In light of the above discussion, I do not find any error or infirmity or illegality in the impugned order and no case is made out for interference with the impugned order in exercise of the writ jurisdiction under Article 227 of the Constitution. 14. Consequently the writ petition is dismissed. Rule discharged with no order as to costs. ..... [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]