1 WP-7433-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7433 OF 2010 1) Shri Dhondiba Ananda Kadam ) (Since deceased through his legal ) Heirs - ) 1A) Shri Mahadev Dhondiba Kadam, ) Age 50 years, Occupation Agriculture) 1B) Shri sadashiv Dhondiba kadam ) Age 45 years, Occupation Agriculture) All R/at - Medad, Taluka Baramati, ) Dist. Pune. ).. Petitioners Versus 1) Chi. Amol Shivaji Pawar ) Minor, through hs guardian ) Shri Hanumant Govindrao Pawar, ) Age 55 years, Occupation Agriculture) R/at Motibaug, Gunawadi, ) Taluka Baramati, Dist. Pune. ) 2) Shri Hanumant Govindrao Pawar, ) Age 55 years, occupati:Ariculture, ) R/at Motibaug, Gunawadi, ) Taluka Baramati,Dist. Pune. ) 3) Sou. Shakuntala Popat Bhoite, ) Adult, R/at Sarade Bungalow, ) Taluka Paltan, Dist. Satara. ) 4) Sou. Anjana Tukaram Sonawane, ) Adult, R/at - Saion Dharavi Road, ) Kala Killa, Mumbai 400 017. ) 2 WP-7433-10.sxw 5) Sou. Ranjanabai Raghunat Agawane, ) Adult, R/at Gunawadi, Taluka Baramati) Dist. Pune. ) 6) Smt. Hirabai Baban Kadam ) Age 50, occupation Hosehold ) residing at Medad,Taluka ) Baramati, Dist. Pune. ) 7) Shri Kiran Baban kadam ) Age 30, ocupation Agri. ) residing at Medad, Taluka Baramati ) District Pune. ) 8) Shri Satish Baban Kadam ) Age 28, Occupation: Agri. ) Resding at Medad, Taluka Baramati ) District Pune. )..Respondents Mr. S.M.Oak i/b. SagarJoshi,Advocate, for the petitioners Mr. Kishore Patil, i/b. Ms. Smita Mane,Advocate for the respondent Nos. 1 & 2. CORAM: J.H.BHATIA,J. DATE : 21st September, 2010. JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard the leaned Counsel for the parties. 2. The petitioners are the legal representatives of the original plaintiff - Dhondiba, who has since expired. The respondent Nos. 1 to 5 are the original defendants and respondent Nos. 6 to 8 are the L.Rs. of one Baban, who was the 3 WP-7433-10.sxw L.R. of the plaintiff Dhondiba. Dhondiba filed the suit alleging that the defendant No.2 had got sale deed executed from him on misrepresentation and fraud and he filed the suit for declaration that the sale deed is null and void. Pending the suit, Dhondiba executed a sale deed in respect of the suit property in favour of one Bhagwan Khartude. On behalf of the defendants, an application Ex.13 was filed under Order I Rule10 C.P.C. for giving direction to the plaintiff to implead the purchaser Bhagwan Khartude as co-plaintiff. That application was opposed by the plaintiff on the ground that it was his choice to implead or not to implead any person as co-plaintiff. The application was rejected by the trial court by the impugned order dated 28.7.2008 by giving reasons for the same. On 20.8.2010, the learned 5th Joint Civil Judge, Junior Division, Baramati, passed the impugned order directing the plaintiff to implead said Bhagwant Khartude as defendant No. 6. That order is challenged by the L.Rs. of the plaintiff in the present petition. 3. The learned Counsel for the petitioners vehemently contended that the impugned order appears to have been passed by the the trial Court by exercising its powers of review. However, under Sec. 114, CPC, the power of review could be exercised only if there is an application by aggrieved party. He contended that there was no application by any of the parties before the trial Court for review of the earlier order dated 28.7.2008 and therefore the impugned order 4 WP-7433-10.sxw could not have been passed. 4. On the other hand, the learned Counsel for the respondents contended that under Order I Rule 10, the Court may, at any stage of the matter, direct the name of any person who ought to have been joined or impleaded as a plaintiff or defendant, to be impleaded as such. 5. Section 114 CPC reads thus :- "114. Review - Subject as aforesaid, any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." From the language of Sec. 114, it is clear that the Court may review its judgment or order only no an application by a person considering himself aggrieved by a 5 WP-7433-10.sxw decree or order passed by the Court. Section 114 does not provide for suo motu review. In Damomal Kausomal Raisinghani vs. Union of India & Ors. AIR 1967 Bom. 355, the Division Bench of this Court had opportunity to consider the provisions of Sec.114, CPC. The Division Bench of this Court observed thus in para 9 :- "9....The power to review a prior order is principally the power vested in an officer to review an order previously made by himself and not by anybody else. It is to be noticed that the powers to review an order conferred on these officers under the said rule are only co-extensive with the powers vested in the Civil Court under the Code of Civil Procedure when trying a suit. The rule was made in the year 1954. Sec. 114 of the Civil Procedure Code confers a power on a person considering himself aggrieved to apply for a review of the judgment to the Court which passed the decree or made the order and the said Court on receiving such an application is empowered to make such order thereon as it thinks fit. It is abundantly clear that the power to review, whatever be its limits, arises only when an application by a person aggrieved in that respect has been made. The Civil Procedure Code does not confer on Courts any general power of reviewing its decision suo motu. It is not in dispute that the proceedings which ultimately culminated in the said order of 31st October 1962 were 6 WP-7433-10.sxw initiated suo motu by the third respondent himself. The exercise of such a power cannot be justified even under the rule on which Mr.Vaidya has placed reliance. Looking at the case from any angle, it is not possible to sustain the order made by the third respondent on 31s October 1962." 6. From the above observations, it is clear that the power to review is principally the power vested in an officer to review an order previously made by himself and not by anybody else. In the present case, the earlier order dated 28.7.2008 rejecting the application Ex.92 was passed by Ms. Sonali Sakhankar, the learned Joint Civil Judge Junior Division, Baramati. Subsequent order was passed by a different judicial officer who was 5th Joint Civil Judge, J.D. Baramati, but whose name is not mentioned. 7. In the later part of the above observations in Damomal (supra), it is made clear that the power of review under Sec.114 can be exercised only on an application or a request of a person considering himself to be aggrieved by the previous order and this is not a suo motu power to be exercised by the Court. Admittedly, in the present case, there was no application of any party to review the earlier order. Paras 2 and 3 of impugned order read thus :- 7 WP-7433-10.sxw "2. My learned predecessor has rejected the application of the defendant vide Exh. 92 for impleading said purchaser Bhagwan Nivrutti Khartude as the Plaintiff No.4. 3. In my view the purchaser of Suit property pending lis, is not only necessary party but also proper party for conclusively determining the rights of all the parties to the Suit." If the above two paras are read together, it is clear that the learned Judge did not agree with the rejection of the application by his predecessor and, therefore, he reviewed that order which he could not in view of the language of Sec.114. That order could be challenged by the aggrieved paty. 8. The Courts below had noted that the plaintiff had alienated the suit property in favour of Bhagwan Khartude pending suit vide Sale-Deed daybook No. 1375/2001, the learned Counsel for the plaintiff also made a statement at the Bar that the plaintiff had in fact sold away the property in favour of Bhagwan Khartude. It needs 8 WP-7433-10.sxw to be noted that if the plaintiff had sold away the property to a third person pending the suit, the plaintiff had no more interest in that property. For continuation of the suit, it was necessary that the person who had interest in the property shall be joined as party and therefore request could be made to implead the purchaser Bhagwan Khartude as co-plaintiff. If the trial Court found it necessary it could have also given such a direction under Order I Rule 10(2) C.P.C., but in the present case, by the impugned order, the learned Judge directed that said Bhagwan Khartude be impleaded as defendant No.6 . By impleading him as a defendant, the defect could not be cured because the plaintiff in the suit would be a person who had no interest in the property. In view of this also, the impugned order is liable to be set aside. 9. In view of the above facts and circumstances, the impugned order is hereby set aside. However, the plaintiff is given liberty to implead purchaser Bhagwan Khartude as a co-plaintiff. If the plaintiff does not want to implead said Bhagwan Kharude as co- plaintiff, the defendants shall have liberty to move an application before the trial court for dismissal of the suit and if such an 9 WP-7433-10.sxw application is moved, it shall be heard and disposed of as per law on its own merits. All contentions in this respect are left open. Rule made absolute accordingly. (J.H.BHATIA,J.)