1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 708 OF 2010 Office Notes, Office memorandum of Coram, appearances, Court’s Court’s or orders or directions & Judge’s orders. Registrar’s orders. Ms Aruna Ghadge for the Petitioner. Shri A.S. Khandeparkar for the Respondents. -- CORAM : A.S.OKA, J. DATE : 3rd February, 2010. P.C.: . On the oral prayer made by the learned counsel appearing for the Petitioner, order of dismissal of the Writ Petition passed in the morning session is recalled and the Petition is restored to file. 2. Heard the learned counsel appearing for the parties. The 2nd Respondent is the original Plaintiff who filed a Regular Civil Suit No.94 of 2004 against the 1st Respondent and the 3rd to 8th Respondents. Being aggrieved by the dismissal of the suit, an Appeal preferred by the 2nd Respondent and others is pending before the District Court. The 1st Respondent is the Original 1st Defendant. In the said Appeal, an 2 application was made by the present Petitioner under Rule 10(2) of Order I of the Code of Civil Procedure, 1908 praying for a direction to implead him as a party. There is another suit between the parties being Regular Civil Suit No.1 of 2001. It is not in dispute that the evidence in both the suits was recorded in common in which the Petitioner has deposed as a witness of the 2nd Respondent. In the application, the Petitioner contended that his ancestor one Sure Nare Parab who was the owner of the suit property. The said application has been rejected. It is this order which is impugned in this Writ Petition. 3. Learned counsel appearing for the Petitioner has relied upon a decision of the learned Single Judge of this Court in the case of Kanta Chandulal Kalidas v. Parsi Dairy Farm & Others, [1985 Mh.L.J. 220 ] and a decision of the Apex Court in the case of Sumtibai & Ors. v. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Through Mankanwar (Smt.) w/o Parasmal Chordia (Dead) and Others, [(2007)10 SCC 82]. The learned counsel submitted that the Apex Court in the aforesaid decision has held that if a third party shows even a semblance of title or interest in the suit property, he can certainly file 3 an application for impleadment and in the present case, the Petitioner has claimed that his ancestor was the owner of the suit property. 4. After having heard the learned counsel appearing for the Petitioner, I find that the Appellate Court was right in rejecting the application. As stated earlier, both the suits were heard together in which the present Petitioner has deposed as a witness. Thus, the Petitioner cannot deny the knowledge of the pendency of the suit. The application has been made in the Appeal. One of the grounds on which the application has been rejected is that when the Petitioner stepped into the witness box as a witness of the 2nd Respondent, he stated that in oral partition, the suit property has been allotted to the 2nd Respondent and others who were the Appellants in the Appeal. In fact, in the application filed by the Petitioner, a portion of his deposition has been quoted. The said deposition was recorded in Regular Civil Suit No.1 of 2001 in which the Petitioner stated that in the partition, the suit property was allotted to the 2nd Respondent in this Petition and that the said respondent was in possession. Thus, not only that the Petitioner had knowledge about the pendency of both the suits but even 4 in the deposition, he did not set up any title in himself to the suit property. In the circumstances, the Appellate Court has rightly declined to exercise discretionary power under Sub-rule (2) of Rule 10 of Order I of the said Code. As the Petitioner has not chosen to claim any right, title or interest in respect of the suit property while deposing as a witness in the suit, it is obvious that the Petitioner is neither a necessary or a proper party. No case for interference is made out. The Writ Petition is accordingly rejected. (A.S.OKA,J) ash