-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.1023 of 2008 Vilas Ramchandra Pawar ..Petitioner vs. 1. Ajay Mohan and others ..Respondents Mr. M.M.Shah, Sr.Counsel with Mr.K.D.Shah for petitioner. Mr.Abhay Abhyankar, Sr.Counsel with Mr. Parimal K.Shroff, Ms.Prachi Khandage, Mr.Pankaj Vernekar and Mr.Nikhil Randive id/b Parimal Shroff and Co. for respondent nos.1 to 3 CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 14th February, 2008 14th February, 2008 14th February, 2008 P.C. P.C. P.C. 1. Heard Mr. Shah, learned Senior Counsel appearing for the petitioner/original applicant and Mr.Abhyankar, learned Senior Counsel appearing for respondent nos.1 to 3/original plaintiffs. Presence of rest of the respondents is not necessary for the purpose of this writ petition. 2. The petitioner is the original Applicant who applied for his joinder in S.C.Suit No.4962 of 2006 and which application having been rejected on 23rd January, 2008 challenging the same the instant petition under Article 227 of the -2- Constitution is preferred. 3. The petitioner’s case is that he applied on the basis that he is the proprietor of the Development Firm operating from Ghatkoper. It was earlier a partnership firm and now it is a sole proprietorship of the petitioner. The petitioner contends that he is fully seized and possessed of the land more particularly described in paragraph 2(b) of the petition. He claims that pursuant to the development agreement dated 28th March, 1994, entered into by original plaintiff no.1 in the above suit with Midtown Developers and Contractors, the development rights in respect of the area which is more particularly mentioned in that agreement have been conferred upon the firm and now on him. He submits that the said land which is mentioned in para 2(b) of the petition and forming part of the development agreement is situated at Kurla, Mumbai. Thereafter on 13th February, 1998, another land at Kurla was also given for development by the said plaintiff no.1 Ajay Mohan and all these agreements are in force. There is a possession letter in favour of the petitioner before me so also irrevocable power of attorney. The land covered by the -3- documents in favour of the petitioner fell partly in village Powai and partly in village Tirandaj. There is Index II issued in favour of petitioner firm. 4. It is the case of the petitioner that he learnt of the suit being filed by the original plaintiffs/respondent nos.1 to 3 against respondent nos. 4 to 17 in the City Civil Court at Mumbai for declaration that these respondents/original defendants have no right in respect of the land/property which is more particularly described in the suit. Upon learning this, the petitioner applied in or about June, 2007 by way of Chamber Summons to join him as party defendant to this suit. He filed two affidavits dated 14th June, 2007 and 24th July, 2007 which were replied to by the original plaintiffs and reliance was also placed during the course of hearing upon the Supreme Court order in the subject litigation. 5. The petitioner’s case was that the original plaintiff no.1 had entered into the development agreement with the petitioner and handed over possession of the land with power to develop and construct upon the same. It is in such -4- circumstances and when the lands are identical, in as much as they are covered by the document in favour of the plaintiffs in that suit so also the present petitioner that, he is a necessary party. In other words, the land at village Tirandaj Taluka Kurla and at Powai being the subject matter of the pending litigation, the petitioner having interest in the said lands by virtue of the document in his favour, he ought to have been joined as party to the suit and is presence is, therefore, necessary. His joinder having not been made, the Trial Court should direct the original plaintiffs to join the petitioner. 6. That application is rejected and the order in that behalf is challenged as stated above. 7. Shri Shah, learned Senior counsel appearing for the petitioner, contended that Order I Rule 3(b), Order II Rule 2 and Order I Rule 10 are the provisons which confer discretion upon the Court not only to secure presence of necessary parties but to avoid mulitiplicity of litigation. His contention is that even if the original plaintiffs claim title to the land in question on the basis of the documents in their -5- favour and that they seek to deny any right to the defendants by virtue of agreement dated 23rd October, 1969, yet, the lands being identical, so also original plaintiffs succeeding in proving their claim does not automatically mean that they could be held to be owners of the property. There are documents executed in favour of the present petitioner/applicant and when the controversy in the suit pertains to the same lands, it would be necessary for the petitioner to have been joined as a party defendant. That would avoid multiplicity of the proceedings which would be forced upon the present petitioner by virtue of the further document in his favour. He submits that in one litigation all matters concerning the lands would be gone into and this is the purpose which is sought to be achieved by the above provisions. That apart, he claims that there is no denial in so far as rights under the Development Agreement are concerned. 8. My attention was invited to the documents and possession letter. 9. On the other hand Shri Abhyankar, learned Senior Counsel appearing for respondent nos. 1 -6- to 3/original plaintiffs submits that the suit is filed for a declaration and permanent injunction. The declaration that is sought is that respondent nos. 4 to 18 or any of them have no right, title or interest of any nature in respect of the land on the strength of the alleged agreement for sale dated 23rd October, 1969 and, therefore, they should be permanently restrained from claiming the same. 10. He submits that the subject matter of the suit is the land covered by agreement of 1969. The parties to the said agreement are before the Court. None other than them is necessary in so far as resolution of that controversy is concerned. If the petitioner had any interest in the land on the basis of the agreement of 23rd October, 1969, then, the matter stands differently. However, he claims right on the strength of his own document and, therefore, his presence is not necessary. This is not as if he is without any remedy and as observed by the Trial Court he should go and assert his right by independent suit. 11. Mr.Abhyankar relied upon the decision of the Hon’ble Supreme Court reported in 2005(6) -7- Supreme Court Cases 733 (Kasturi Vs.Iyyamperumal and others). The tests which are to be applied for considering the applications in question are well settled and need not be elaborated. The Supreme Court in the decision relied upon by Mr.Abhyankar has in para 15 referred to the governing principle that the parties before the Court should be such so as to enable the Court to adjudicate upon and settle all the questions involved in the suit. The matter before the Supreme Court was in the context of an agreement for sale of which the specific performance was sought. The Supreme Court observed that when the respondents did not seek addition on the strength of a contract in respect of which the suit was filed but based their independent title and possession, then, their presence would not be necessary. It is in that context that the Supreme Court observed in para 16 thus: "16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC "All the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be -8- gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and respondents 2 and 3 and respondent 1‘ and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the -9- contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale." 12. The Supreme Court in para 18 reiterated the principle that the appellant before it who had filed the suit is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law as discussed hereinabove. 13. Applying these tests to the facts of the present case, to my mind, the learned Judge was right in holding that the Chamber Summons at the instance of the present petitioner was not maintainable. The affidavit in support of the chamber summons sets out very clearly that the petitioner claims that one Ajay Mohan who is the original plaintiff in the instant suit had executed the Development agreement dated 17th March, 1998 and handed over possession based upon which the petitioner/applicant has applied for his joinder. In para 8 he states that original plaintiff nos. 2 and 3 are relying -10- upon certain transactions between them and original plaintiff no.1 and have signed the plaint as authorised signatory for the said Ajay Mohan. The suit is filed only with a view to create some false evidence. It is on this basis and apprehension that even if independent suit would be filed by the plaintiff the observations and conclusions drawn in the instant suit would be held against him and that why he applied for his joinder. 14. The correction was made in the subsequent affidavit in support and reliance was placed on the development agreement dated 28th March, 1994 for Powai land and dated 13th February, 1998 for Tirandaj land. This request was opposed by the original plaintiff and while disputing that no such documents much less those produced during the course of hearing of the chamber summons were executed, reliance was also placed on certain reports of the survey officer stating that the original plaintiffs are in possession. The entire version of the petitioner is thus disputed. The original plaintiffs are not admitting execution of the development agreement or possession receipt in favour of the applicant/petitioner before me. That is clear -11- assertion in para 4 of the affidavit in reply to the Chamber Summons. It is also contended that the application made is not bonafide. It is reiterated that what is involved in the instant suit is the controversy with regard to the agreement for sale dated 23rd October, 1969 and nothing else. 15. The learned Judge has in the light of this controversy rightly observed in para 6 of the impugned order that the petitioner is placing reliance upon distinct documents. That is a controversy between the original plaintiffs and the petitioner/applicant. The suit is asserting the right and title of the original plaintiff against the defendants to the suit on the basis that the agreement dated 23rd October, 1969 conferring no right on the defendants. Admittedly, the applicant/petitioner before me is not a party to the agreement of 1969. In such circumstances, if there was distinct transaction and distinct agreement conferring independent or separate rights, then, the learned Judge is right in the conclusion that the remedy of the petitioner is to file his own suit and not claim for joinder. He is not a necessary party and, therefore, the question of -12- his joinder on the basis that his presence is necessary for effectively and completely resolving the controversy in the suit does not arise. In such circumstances, there is no reason to interfere with the discretion exercised by the Trial Court which does not seem to be vitiated by any error apparent or perversity so also arbitrariness. The petition is, therefore, summarily dismissed. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)