: 1 : 6268-10-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6268 OF 2010 WITH WRIT PETITION NO. 7498 OF 2011 WITH WRIT PETITION NO. 440 OF 2010 Balewadi Properties Pvt. Ltd. .. Petitioner v/s. Vithal Gangaram Ghanvat & Ors. .. Respondents ......... Mr. Ravi Kadam, Sr. Advocate i/b Vilas M. Mali for the petitioner in WP-6268 of 2010 and WP 7498/11. Mr. R.S. Apte, Sr. Advocate i/b Sagar Ambedkar and Girish Paryani for respondent nos. 8B to 8E. Mr. Sachin Dhakephalkar for respondent nos.1 to 4 and 5A to 5E. Mr. S.S. Prtwardhan for the petitioner in WP-440/2010 ......... CORAM : R.Y.GANOO, J DATE : 14th OCTOBER,2011. P.C. : 1. Mr. Vitthal G. Ghanvat and 5 others had filed S.C. Suit No. 1272 of 1989 in the Court of learned Civil Judge, Senior Division, Pune so as to seek specific performance of agreement dated 11th November, 1987 : 2 : 6268-10-wp=.sxw purported to be entered into for the benefit of the plaintiffs therein as well as original defendant no.3 Mr. Tukaram Kondiba Balwadkar. The suit was principally filed against the original defendant nos.1 and 2 as the relief of specific performance was being sought against these two defendants. It is noticed that during the pendency of the petition, original plaintiff no.5 has expired and his heirs 5A to 5F are brought on record. So far as original defendant no.3 is concerned, he has also expired and his heirs namely 3A to 3E are brought on record. Similarly, it is to be noted that defendant no. 3 has also expired. 2. It is noticed that the original plaintiffs filed application for interim relief. That application was initially opposed by defendant no.3. Thereafter, defendant no.3 thought of supporting original plaintiffs and that is how an application was filed by him for transposing himself from the position of the defendant to the position of the plaintiffs. That application is at Exh.223. Thereafter, the original plaintiff nos. 1 and 2 by application at Exh.355 filed an application for withdrawal of the suit unconditionally. Thereafter, defendant no.3 filed an an application at Exh. 356. praying that application filed by original plaintiff nos. 1 and 2 at Exh. 355 should be rejected. : 3 : 6268-10-wp=.sxw 3. It is required to be noted that present petitioner M/s. Balewadi Properties Pvt. Ltd. came to be added as party defendant in the year 2008. It is further noticed that the learned Civil Judge, Senior Division, Pune at Pune decided the two applications below Exh. 355 and 356 and passed the following order on 23rd January, 2009. “1. The pursis at Exh.355 is filed to show that the plaintiff has abandoned the suit. 2. The application below Exh.356 is rejected. 3. The defendants no. 3-a to 3-e transpose themselves as plaintiffs. 4. The defendants no. 3-a to 3-e to carry out amendment to transpose themselves as plaintiffs in the suit for the trial of the same in accordance with law and amended plaint be served on the remaining defendants. 5. The defendants no. 3-a to 3-e are at liberty to prefer an application for impleading the present plaintiff as party defendants in the suit. 6. No order as to costs.” 4. It is required to be noted that after the passing of the order dated 23rd January, 2009 as mentioned aforesaid, the present petitioners filed an application below Exh.362 praying for setting aside the orders passed : 4 : 6268-10-wp=.sxw below Exh.355 and 356 and for dismissal of the suit. It was also prayed that appropriate action be initiated against the new plaintiffs i.e. plaintiff nos. 3B to 3E. This application at Exh.362 was decided by the learned Judge by order dated 30th June, 2010 and following order is passed. “Application of defendant no.9 Exh.362 is rejected. However, common order passed below Exh.365 and 366 (These numbers should have been Exh.355 and Exh.356) is required to be modified and it modified as under. The defendant no.3(b) to 3(e) shall transpose themselves as plaintiffs. The defendant no.3(b) to 3(e) shall carry out amendment to transpose themselves as plaintiffs in the suit for the trial of the same in accordance with law and amended plaint be served on the remaining defendants. The defendant no.3(b) to 3(e) are at liberty to prefer an application for impleading the present plaintiffs as party. No order as to costs.” 6. In the course of hearing, it was stated across the bar by learned Senior Counsel Mr. Apte that as of today, names of original plaintiff no.1 and plaintiff no.2 are not deleted. He also informed the Court that pursuant to the order passed by the learned trial Judge dated 30th June, 2010, original defendant no.3-B to 3-E have now been shown as plaintiffs. : 5 : 6268-10-wp=.sxw 7. With these developments, I have considered the record and I have heard learned Counsel on behalf of respective sides. In my view, now that the order dated 30th June, 2010 has been passed and the learned trial Judge has modified the order passed in respect of Exh.356 and Exh.356, the complexion of the litigation has totally changed. The defendant no.3B to 3E have now come on record as plaintiffs. In such a case, now the only point, which is required to be considered is the question of period of limitation so far as present plaintiffs no.3B to 3E and prosecuting the suit which was originally filed in the year 1989. Learned Advocate General Mr. Kadam had relied upon the judgment in the case of Nathu Ram and Ors. Vs. Manphool and Ors. (1996) 4 SCC 462. A perusal of the said judgment would clearly go to show that question whether the present plaintiffs nos. 3B to 3E can prosecute the suit and whether that suit so far as all these persons are concerned would be within the period of limitation, is required to be gone into. It is noticed that orders came to be passed about transposition of defendant nos.3A to 3E in the year 2003. That order was not acted upon and thereafter various developments have taken place. In my view, the interest of justice now would require that an opportunity should be given to all the persons who are presently standing as defendants to raise appropriate contentions by filing an additional : 6 : 6268-10-wp=.sxw written statement as regards the question viz. Whether suit so far as plaintiff nos. 3B and 3E is within the period of limitation. In the written statement they can raise the question of limitation and such other questions which they would like. Since the plaintiffs nos. 1 and 2 whose application to withdraw the suit has been specifically rejected and since plaintiff nos. 3B to 3E are now permitted to make an application for transposing to original plaintiff nos. 1 and 2 that transposition is left open and if such an application is filed, said application will have to be attended to on merits. In my view, it will not be necessary now to reopen all the orders which have been passed. In my view, if the present contesting defendants use the liberty which is granted to them in aforesaid terms, their interest would get adequately protected and the suit can be taken up. Looking to the fact that the suit was filed in the year 1985 for specific performance it would be proper that the suit be disposed of at an earlier date. Hence, I am inclined to pass an order directing the learned Civil Judge, Senior Division, Pune before whom the said suit is pending to dispose of said suit as expeditiously as possible and in any event by 31st December, 2012. Hence, following order is passed to dispose of these petitions. : 7 : 6268-10-wp=.sxw ORDER (i).Since original defendant no.3B to 3E are now shown as plaintiffs, such of defendants who are interested opposing the prosecution of suit by plaintiff nos. 3B to 3E, are free to file an additional written statement on record. They are also at liberty to raise a question of limitation in so far as prosecution of the suit by present plaintiff nos. 3B to 3E. The contesting defendants who are desirous of filing additional written statement on the basis of this order shall do so on or before 28th November, 2011. (ii). If such written statement is filed, learned Civil Judge, Senior Division, Pune shall attend to the suit in accordance with the provisions of law. The learned trial Judge shall hear and dispose of the suit as expeditiously as possible and preferably by 31st December, 2012. It is reiterated that all contentions in regard to the points which will be raised by the defendants are left open. This Court has not expressed any views on the merits of the matter. (R.Y.GANOO, J.)