:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2305 OF 2008 PETITION NO.2305 OF 2008 PETITION NO.2305 OF 2008 M/s Sunil Somvanshi & Company ..Petitioner V/s Smt. Seema Suresh Dawalbhakta ..Respondent Mr. S.V. Pitre for the petitioner Mr. Shriram S. Kulkarni for the respondent CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 4TH JULY, 2008 : 4TH JULY, 2008 : 4TH JULY, 2008 P.C. 1. Rule, rule made returnable forthwith and by consent heard finally. 2. This petition is directed against the order dated 21st February, 2008 passed by Civil Judge, S.D. Pune, whereby the application of the petitioner-plaintiff to implead Gagan Co-operative Housing Society as party-defendant to the suit came to be rejected. 3. The petitioner is a developer and the respondent was the owner of the suit property and the parties had entered into a development agreement which came to be terminated by the respondent :2: whereupon the petitioner filed the suit for declaration and injunction. During the pendency of the suit, the respondent executed a sale deed in respect of the suit property with third party - M/s Om Developers of which one Mr. Pawar is a partner. A society came to be formed by M/s Om Developers in the name as Gagan Co-operative Housing Society of which the said Mr. Pawar is the Chairman. The petitioner therefore made an application to implead Gagan Co-operative Housing Society as party-defendant to the suit which came to be rejected by the impugned order - hence this petition. 4. Relying upon the case of Dilip Bastimal Jain Dilip Bastimal Jain Dilip Bastimal Jain V. V. V. Baban Bhanudas Kamble, Baban Bhanudas Kamble, Baban Bhanudas Kamble, reported in 2001 (3) Mh.L.J. 730. the learned Counsel for the petitioner submitted that the proposed defendant is required to be impleaded as party-defendant, in view of the fact that there is a subsequent transfer of the suit property and even though there is no declaratory relief claimed as against the society, it was necessary to plead them as party-defendant. He submitted that in absence of the proposed defendant being on record, the decree if any being passed in :3: favour of the petitioner would have no consequences as decree would not be executable. The learned Counsel, therefore, submitted that the Trial Court had clearly erred in dismissing the application of the petitioner. He submitted that this being a subsequent event i.e. after filing of the suit, the proposed defendant is a necessary and proper party to the suit and by rejection of his application, grave injustice has been caused to him and the impugned order is passed without considering the relevant provisions of law and there is an error apparent on the face of the record. 5. The learned Counsel for the respondent on the other hand supported the impugned order and submitted that the impugned order has been rightly passed and that the 3rd party is neither necessary nor proper party to the suit. Relying upon the decisions in the case of Sarvinder Singh V. Dalip singh Sarvinder Singh V. Dalip singh Sarvinder Singh V. Dalip singh, reported in (1996) 5 SCC 539 Sanjay Varma V. Manik Roy, Sanjay Varma V. Manik Roy, Sanjay Varma V. Manik Roy, reported in (2006) 13 SCC 608 and Sunil Gupta V. Kiran Sunil Gupta V. Kiran Sunil Gupta V. Kiran Girhotra Girhotra Girhotra, reported in (2007) 8 SCC 506, the learned Counsel for the respondent submitted that though the property has been transferred during the pendency of :4: the suit the rights of the petitioner would not be affected in view of section 52 of Transfer of Property Act and that the alienation was hit by Doctrine of lis pendens. The learned Counsel submitted that consequences of non impleadment of the 3rd party would not be fatal to the suit and that the transfer would not in any manner affect the rights of the petitioner under the decree which may be passed. The learned Counsel therefore submitted that if the property is transferred pendente lite without leave of the Court, ordinarily such party cannot be impleaded and is not necessary and proper party. 6. Having heard the learned counsel for the parties and on perusal of the impugned order and material on record, I am of the view that the Trial Court has clearly erred in dismissing the application of the petitioner for impleading 3rd party to the suit. Admittedly the property changed hands during the pendency of the suit and the sale deed is executed in favour of 3rd party which is Gagan Co-operative Housing Society and therefore, considering the order 1 Rule 10 CPC they would be necessary and proper party in the suit. :5: 7. In the cases cited by the learned Counsel for the respondent it is noted that those were the cases wherein 3rd party themselves had applied to be impleaded as party-defendant in the suit and the Court had refused the application of 3rd party to implead themselves in the suit interalia on the ground that the decree, if any, would not be binding on them. However, in the instant case, it is the petitioner, who is plaintiff in the suit, seeks to implead the transferee of the suit property, in as much as transfer in the form of sale deed has occurred during the pendency of the suit. The petitioner is dominus litis and he would be within his rights to seek impleadment of a 3rd party who has purchased the suit property during the pendency of the suit. Once sale deed has been entered into by the respondent (orig. defendant) obviously she ceases to have interest in the suit property. 7. The Appellate Court has thus gravely erred in rejecting the application of the petitioner to implead 3rd party as party-defendant. The impleadment, in my opinion is necessary for an :6: effectual and complete adjudication of the dispute and for an executable decree and to avoid multiplicity of proceedings. It is to be noted that the application in the present case is at the instance of the petitioner/ plaintiff and the property has been dealt with during the pendency of the suit. It appears that what has weighed with the Trial Court is that there is an order of this Court to dispose of the suit within 6 months out of which 4 months had already elapsed as is recorded in the impugned order. The impugned order, in my view cannot be sustained and unless interfered, grave injustice would result. 9. In the result, the impugned order is set aside and the petition is allowed and rule made absolute. The amendment to be carried out by the petitioner within 3 weeks. 10. At this stage, the learned Counsel for the respondent seeks stay of this order for a period of 4 weeks. The learned Counsel for the petitioner has no objection. The operation of this order is accordingly stayed for a period of 4 weeks. The :7: Trial Court shall not to proceed with the hearing of suit for a period of 4 weeks. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)