1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1558 OF 2009 Vitthal Shankar Mokashi and another Petitioners versus Shamchand Tribhuvandas Gujrathi and others Respondents A.P.Vanarase for petitioners. Girish B. Badiyer for respondents 5 and 6. M.J.Jamdar for respondent no.3A. CORAM : A.S.OKA, J. DATE : 23rd April 2010 PC : 1. The parties have been put to notice that the petition will be disposed of finally at the stage of admission. The petitioners in this petition under Article 227 of the Constitution of India are the original plaintiffs. The challenge is to the order dated 5th December 2008 passed by the Trial Court by which an application made by the petitioners under Rule 10(2) of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") has been rejected. 2. The suit has been filed by the petitioners for a declaration that the lease deed dated 10th August 1948 referred to in the plaint is false and fabricated. A declaration is claimed that the respondents have no right, title and interest in respect of the suit property more particularly described 2 in paragraph 1 of the plaint. 3. The case made out by the petitioners is that the suit property was owned by one Janabai, the mother of the first petitioner. Reliance is placed on gift deed dated 18th March 1918 executed by the maternal uncle of the mother of the first petitioner. It is stated that since then the said Janabai became the owner who died on 15th April 1974. A reference has been made in the plaint to the lease deed dated 10th August 1948 which is the subject matter of challenge in the suit. The said document of lease has been executed by one Gangabai Ganpat Jagtap and others in favour of first to fourth respondents herein. It is contended that the said Gangabai and others had no right to execute the said lease as they had no right, title and interest in respect of the suit property. It is alleged that the first to fourth respondents have executed a power of attorney in favour of the fifth respondent and that the sixth respondent is the husband of the fifth respondent who was a builder and developer. 4. In the application at Exhibit-78 made by the petitioners, a prayer has been made for impleading M/s.Oxford Properties through one Parag Shah who is its partner and The Poona Diocesan Corporation Pvt.Ltd. as seventh and eighth defendants. In the application, the petitioners have stated that earlier an application made for the same relief was permitted to be withdrawn by this Court with liberty to file a fresh application. On the basis of said liberty granted by this Court, the application at Exhibit-78 has been made. In paragraph 6 of the said application, a reference has been 3 made to the averments made by the fifth defendant in the written statement. It is stated that the said Gangabai and others sold a part of suit property to one Mr.Sathe who in turn sold it to proposed 8th defendant. It is stated that the property has been taken over by the proposed defendant no.7 from the proposed defendant no.8. That is why a prayer is made for adding the parties. 5. While rejecting the application, the learned Trial Judge observed that 6th respondent (original 6th defendant) was impleaded in the suit subsequently by making an application at Exhibit-26. It is pointed out that in the said application there is no reference to the proposed defendant nos.7 and 8. The learned Trial Judge has made a reference to the Power of Attorney dated 1st November 2002. The learned Trial Judge observed that the Power of Attorney was executed in favour of 6th defendant (6th respondent) as well as one Parag Shah who is shown as a partner of the proposed defendant no.7. The learned Judge, therefore, proceeded to observe that as the 6th respondent is already impleaded as a party, it was not necessary to implead proposed 7th defendant as a party. The learned Judge observed that there is no challenge in the suit to the sale deed executed in favour of proposed respondent no.8. 6. The learned counsel appearing for the petitioners invited my attention to the prayers made in the suit. He submitted that since the suit is based on title and since a right, title and interest in the suit properties is being claimed by the proposed defendants, the petitioners are entitled to 4 implead the proposed defendants. It is submitted that merely because respondent no.6 is already impleaded as a party, the petitioners are not prevented from impleading the proposed 8th defendant who was claiming the title and the proposed 7th defendant who was claiming right to develop the property through proposed defendant no.8. 7. The learned counsel appearing for 5th and 6th respondents have opposed the petition. He submitted that at all the relevant times the petitioners were aware of the agreement dated 1st November 2002 as well as Power of Attorney to which a reference has been made in the application at Exhibit-78. It is submitted that in any event, the proposed defendants could have been impleaded as parties long back and the petitioners could not have waited till the year 2008 to implead the said parties. He submitted that there is no challenge to the title claimed by 8th respondent on the basis of document of sale. I have also heard learned counsel for respondent no.3A. 8. I have given careful consideration to the submissions. The petitioners being the plaintiffs are dominus litis. While filing a suit, the petitioners could have always impleaded the proposed defendants as parties. The petitioners could have impleaded the proposed defendants as parties when earlier application at Exhibit-26 was made for impleading the 6th respondent. The application of the petitioners is under Sub Rule 2 of Rule 10 of Order I of the said Code and, therefore, even if 7th and 8th defendants are added as parties, the impleadment will be governed by 5 Section 21(1) of the Limitation Act, 1963. The contentions of the proposed defendants regarding bar of limitation always remain open. 9. The learned Judge has observed that the petitioners have already impleaded 6th respondent in whose favour the said Power of Attorney has been executed along with one Parag Shah and, therefore, it is not necessary to implead the said Parag Shah as a party. The learned Judge has ignored that in the application, the proposed 7th defendant has been described as M/s.Oxford Properties through partner Parag Shah. Therefore, the proposed 7th defendant is a partnership firm of which Parag Shah is a partner. The suit is based on title. In the circumstances, considering the rights claimed by the proposed defendants, they became proper parties to the suit. There was no reason to deny permission to implead the additional defendants. The impugned order is illegal and the same deserves to be quashed and set aside. 10. Hence, I pass following order :- A) The impugned order dated 5th December 2008 is quashed and set aside and the application at Exhibit-78 is allowed; B) Amendment shall be carried out within a period of two weeks from the date on which writ of this order is received by the Trial Court; C) It is obvious that all the defences of the added defendants including the defence of bar of limitation remain open notwithstanding the order of impleadment; 6 D) Writ Petition is allowed in above terms; E) Civil Application No.947 of 2009 does not survive and the same is disposed of. (A.S.OKA, J.)