: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.1856 OF 2007 SUMMONS NO.1856 OF 2007 SUMMONS NO.1856 OF 2007 IN IN IN SUIT SUIT SUIT NO.4162 OF 1995 NO.4162 OF 1995 NO.4162 OF 1995 Roop Narain Sah & Anr. ...Plaintiffs V/s. Smita Rajeev Sah ...Defendant And Anushree Rajeev Sah ...Respondent Mr.Yashodhan Divekar a/w. Mr.G.V. Bhagwat and Ms.Gargi Bhagwat i/b. Divekar & Co. for the Plaintiffs. . Mr.Kunal Damle a/w. Mr.Nikhil Davare i/b. Udwadia & Udeshi for the Defendant. . Smt.Sonal a/w. Mr.Shailesh Pathak for the Respondent. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 3RD APRIL, 2009. : 3RD APRIL, 2009. : 3RD APRIL, 2009. P.C.: P.C.: P.C.: 1. Heard. 2. This suit is filed by the parent in-laws of the Defendants for declaration that they are owners of certain flat as it is their self acquired property. They sought eviction of their daughter-in-law, the Defendant No.1, from the same. The Defendant No.1 asserted in defense that the suit flat belonged to the Hindu Undivided Family (HUF) of the Plaintiffs, Defendant and others and that in a : 2 : family settlement that took place in 1982, the same came to the share of her deceased husband. She, inter alia, also asserted that she is entitled to use this flat as residence under the provisions of Hindu Adoption and Maintenance Act. The lis between the parties thus is in respect of the right of the Plaintiffs to seek relief against the Defendants which is arising out of the allegation that the property belonged to the Plaintiffs as self acquired as against the assertion of the Defendants that it is not a self acquired property of the Plaintiffs and that it is the property of the joint Hindu family. The suit is pending since 1995. The Plaintiffs rather belatedly made the present application to seek permission to implead the daughter of the Defendant No.1 as the Defendant No.2. It is the case of the Plaintiffs now that even their grand daughter, the proposed Defendant No.2, is interested in denying their case that the suit flat belonged to them as self acquired property. It so happened that of late recently the Respondent filed a suit in which she asserted similarly that the suit flat was property of the HUF of which her father was the member, the flat fell to the share of her father when the partition took place in 1982 and that since she is a daughter in the family, in view of the amendment to the Hindu : 3 : Succession Act, she being the co-parcener, has undivided share in the flat. 3. In view of this assertion which is recently made by the Respondent, the present application came to be filed under the provisions of Order 1 Rule 3 of the CPC. The Plaintiffs now want their grand daughter to be a party Defendant in this suit. The question is whether such an application should be allowed. The Plaintiffs on one hand relied on the provisions of Order 1 Rule 3 of the CPC which reads as under : "I(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. 4. On the other hand, the Respondent placed reliance on the provisions of Order 1 Rule 10(2) of the CPC which reads as under : "10(2). Court may strike out or add : 4 : parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved int he suit, be added." 5. I am in favour of allowing the Chamber Summons. The provisions quoted above are not against each other. They must be read jointly. The provision which is applicable to the present situation is the Rule 3 of Order 1 of the CPC. Plaintiff is given liberty to join all the persons as Defendants in one suit if he finds that his right to relief arises out of same act or transaction. It is also clear from clause (b) of rule (3) that such step should be taken to avoid multiplicity of suits or litigations. The argument of the Respondent that she is not a proper or necessary party to the suit must be viewed in the light of Rule (3). It is clear that it is the choice of the Plaintiffs as to who they should add as Defendants. If the Plaintiffs satisfy to the Court that the respondent - though rather belatedly - joined the lis by denying their right to the relief, they have right to join such party to the : 5 : suit. In any case, this suit would enable the Plaintiffs to assert and prove that they are the owners of the property and the property does not belong to the HUF. This question between the parties is common and so the Plaintiffs cannot be asked to file a separate suit. This would also avoid multiplicity of litigation. The reliance on the Judgement of the Calcutta High Court in the case of Narayan Chandra Garai & Ors. vs. Matri Bhandar Pvt. Ltd. & Anr. reported in AIR 1974 Calcutta 358 (V 61 C 84) is misplaced because in that case a party was seeking to join a suit and was seeking to compel the Plaintiffs in that case to implead him as Defendant. Rejecting such application the Court held as under : "8. The main consideration seems to be whether or not the presence of the petitioner is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in this suit. If the question at issue between the parties can be worked out without anyone else being brought in the stranger should not be added as a party. As already stated before the petitioner cannot be considered to be a proper or a necessary party. That she may be eventually affected by the judgment or in the execution decree against the defendant No.2 is not a cogent ground to make her a party. As was pointed out by the Supreme Court in the case of Deputy Commissioner, Hardoi v. Rama Krishna, as reported in AIR 1953 SC 521 at p.526 the eventual interest of a party in the fruits of litigation cannot be held to be a true test of impleading parties according to the Code of Civil Procedure. A compulsion : 6 : other than one based on positive rule of law upon the plaintiff to litigate against a person not of his own choice must be unfair. Reference may be made in this connexion to the case of Vaithilinga Pandara Sannidhi v. Sadasiva Iyer, reported in AIR 1926 Mad. 836." 6. As said above, the reliance on this quotation of this Judgment is not convincing and not proper in this set of facts. The Chamber Summons is made absolute in terms of prayer clause (a). 7. The Plaintiffs shall amend the plaint within a period of one week and serve amended copy of the plaint on the other side within a period of two weeks thereafter. 8. The Chamber Summons stands disposed of in aforesaid terms. [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]