kbp 1 8311-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8311 OF 2009 Shashikala Rajgopal Iyer ..Petitioner Vs. Kantilal Pitambardas Vora and others ..Respondents ....... Mr.V.Y.Sanglikar, for petitioner. ....... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] Heard learned counsel for the petitioner in support of this petition under Article 227 of the Constitution of India. 2] The petitioner is the original plaintiff. A suit for declaration is filed by the petitioner. The prayer in the suit is that the document dated 6 th November, 1973 executed by the father of the petitioner in favour of the deceased father of the respondents is unforceable in law in as much as no suit was filed for enforcing the said document with the stipulated period of limitation and that the said document is not capable of being enforced. The second prayer in the suit is in the alternative. The said prayer is that if the Court finds that the petitioner is not in possession, a decree for possession be passed. The document is an agreement for sale. An application was made by a third party under Rule 10(2) of Order 1 of the Code of Civil Procedure, 1908 praying that the said third party (the fifth respondent herein) be impleaded as a party defendant. The said application came to be allowed by order dated 20 th June, 2009. The petitioner kbp 2 8311-09.sxw applied for review of the said order. The review petition has been rejected. No challenge in this writ petition is to the said two orders. 3] Learned counsel for the petitioner invited attention to the prayer made in the application. He submitted that the third party is totally a stranger and in view of the settled law, the third party has no locus. The third party claimed on the basis of an agreement executed by Pitambardas, the father of the defendants and the third party claims that the said Pitambardas was in possession on the basis of the document dated 6 th November, 1973. He also invited attention to the averments made in the application, and particularly, to paragraph 10 in which the said third party has stated that the third party desires to settle the matter with the petitioner and the third party wants to pay the balance consideration payable to the petitioner under the agreement dated 6 th November, 1973. He submitted that the averments made in the application show that the third party is totally a stranger to the suit transaction and the third party is neither a necessary nor a proper party to the suit. He submitted that an altogether different document was produced by the party along with application exhibit 41 and the trial court was therefore, misleaded by the said document. He, therefore, submitted that application for review was filed which has been erroneously rejected by the trial court. 4] I have carefully considered the submissions. The prayer made in the suit is for avoiding the agreement for sale dated 6 th November, 1973 executed by the petitioner’s father in favour of Pitambardas (predecessor of the original defendants). The suit proceeds on the ground that neither the said Pitambardas nor his heirs filed a suit for specific performance of the said agreement and the said suit has become time barred long back, and therefore, the said agreement is not capable of being performed. The original defendants are the legal representatives of the said Pitambardas who is the purchaser under the said kbp 3 8311-09.sxw agreement. In the application made by the third party, it is contended that under the agreement dated 6 th November, 1973, the possession of the suit property was handed over by the father of the petitioner to Pitambardas. The case of the third party is that in respect of a part of the property affected by the said agreement dated 6 th November, 1973, the respondents have executed an agreement for sale in favour of the third party. The third party claims to be in possession of the suit property on the basis of the said agreement. 5] Thus, in substance, the claim of the third party is that the predecessor of the original defendants was placed in possession of the suit property on the basis of the said agreement dated 6 th November, 1973 and the defendants have agreed to sell a part of the suit property to the third party and the third party has been allegedly placed in possession. If the substantive prayer made in the suit is granted, the rights of the third party will be affected in as much as the agreement of sale allegedly executed by the in favour of the third party is on the basis of the said agreement dated 6 th November, 1973. The third party claims to be in the possession on the basis of the agreement executed by the legal representatives of the said Pitambardas. There is a prayer made in the alternative for passing a decree for possession. 6] Though, the reasons recorded in order dated 20 th June, 2009 may not be satisfactory, considering the facts set out above, it is impossible to say that the third party is neither a necessary nor a proper party. Therefore, is not possible to find fault with the discretionary order passed by the trial court directing the petitioner to implead the third party as a party defendant. Therefore, no case is made out for interference. 7] Writ petition is rejected. All contentions on merits are kept open. ( A.S.OKA, J. )