WP.1147-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 1147 OF 2011 Om Chamunda CHS Ltd. ...Petitioner Vs. Lalmansingh & Anr. ...Respondents *** Mr. A. S. Khandeparkar i/b Mr. Anilkumar Joshi & Ms. Shilpa A. Joshi, for the Petitioner. Mr. A. S. Uraizee & M. V. Singh, for Respondent No.1. Mr. Rajesh G. Singh i/b Legal Visions, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : MARCH 15, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and respondent Nos. 1 and 2. The petitioner is aggrieved by an order passed by the Small Causes Court. By the said order the learned Judge of the Small Causes Court was pleased to allow the application filed by respondent No.2 for seeking a direction to the plaintiff to join him as party defendant No.2 in the said suit. The said application was allowed and direction, as prayed, was granted. The plaintiff filed the suit WP.1147-11 - 2 - against defendant No.1 seeking an order of permanent injunction, restraining respondent No.1 from obstructing his possession and creating any third party rights in the suit property. In the said suit, respondent No.2 filed an application in which he claims that respondent No.1 was tenant of the said applicant and that he has interest in the said property and therefore, he was a necessary party in the suit filed by the petitioner herein. 3. The learned counsel appearing on behalf of the petitioner submitted that a suit (S. C. Suit No. 440 of 2001) was filed by the petitioner in this Court in which respondent No.2 was defendant No. 13, and in the said suit consent terms were filed. It was submitted that in the consent terms, respondent No.2 had admitted that possession was handed over to the petitioner herein. It was then submitted that in the said suit which was filed by the petitioner in the City Civil Court for injunction against respondent No.2, he had admitted in the affidavit-in-reply, filed in the Notice of Motion, taken out by the petitioner that he had no control over the suit premises. It is submitted, therefore, that respondent No.2 was estopped from raising this claim, as alleged in his application and therefore, was neither a necessary nor proper party to the suit, filed by him. WP.1147-11 - 3 - 4. On the other hand, the learned counsel for respondent No.2 submitted that the petitioner himself had filed a suit against him in the City Civil Court, seeking an order of injunction, restraining him from creating any third party rights. It was submitted that the decree which was passed by this Court was not executed and therefore, it was submitted that no case is made out for interference in the order passed by the Small Causes Court while exercising jurisdiction under Art. 227 of the Constitution. In my view, there is some substance in the submissions made by the learned counsel for respondent No.2. The fact remains that the suit has been filed by the petitioner in the City Civil Court against respondent No.2 in respect of part of the suit premises and the said suit, however, was dismissed for default. There is some controversy and dispute regarding handing over possession of the premises, pursuant to the consent decree which was passed in the suit by City Civil Court. In this view of the matter, I do not see any reason to interfere with the order passed by the Small Causes Court. It is always open for the petitioner to raise an issue that respondent No.2 is estopped from making any claim against the petitioner, in view of the consent terms or allege that the said plea is barred by the principles of res judicata or constructive res judicata in which case the trial Court would decide said issue on merits WP.1147-11 - 4 - and in accordance with law. Hence, no case is made out to interfere with the order passed by the lower Court. Therefore, writ petition is dismissed. All other contentions raised by the petitioner and respondent No.2 are kept open. The trial Court is directed to dispose of the suit as expeditiously as possible, in any case within one and half year from today. 5. The petitioner/plaintiff is permitted to implead respondent No.2 herein as party-defendant to the suit within two weeks from today. Respondent No.2 i.e. added defendant shall file his written-statement within four weeks thereafter. . With these directions, writ petition is disposed of. [ V. M. KANADE J.]