1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8912 OF 2009 Anil Bapusaheb Dangmali. .. Petitioner Vs Santosh Kisan Tupe & Ors. .. Respondents -- Shri S.R. Ganbavale for the Petitioner. Ms Deepa Pande for Respondent No.1. Shri S.V.Sadavarte for Respondent Nos.2(a) to 2(c). -- CORAM : A.S.OKA, J. DATE : 18TH FEBRUARY, 2010 P.C: . Heard learned counsel appearing for the Petitioner, learned counsel appearing for Respondent No.1 and the learned counsel appearing for Respondent Nos.2(a) to 2(c). 2. The Petitioner is the 4th Defendant in a suit filed by the 1st Respondent. The 2nd Respondent was the original 1st Defendant in the said suit. The 1st Defendant expired on 26th July, 2004. The Respondent Nos. 2(a) to 2(c) have made an application at Exhibit-116 praying that the Plaintiff be directed to implead them as Defendant Nos.14 to 16. By an order dated 2nd December, 2008, the said application was allowed. 2 3. The learned counsel appearing for the Petitioner invited my attention to a copy of the amended plaint. He pointed out that the Applicants in the application at Exhibit-116 ought to have been impleaded as Defendant Nos.14 to 16 but while carrying out the amendment in the Plaint, they had been impleaded as Legal Representatives of the deceased 1st Defendant. He submitted that the application at Exhibit-116 was obviously under Rule 10(2) of Order I of the Code of Civil Procedure, 1908. He submitted that there was no application made for setting aside the abatement of the suit as against the Defendant No.1. 4. The learned counsel appearing for the 1st Respondent/Plaintiff submitted that in Paragraph 2 of the application at Exhibit-116, a prayer was made that the third parties be impleaded as Defendant Nos.1(a) to 1(c) and therefore, the amendment has been carried out accordingly. 5. I have given careful consideration to the submissions. On a plain reading of the Application at Exhibit-116, it appears that the application was made under Rule 10(2) of Order I of the said Code. It is true that in paragraph 2 of the application at Exhibit-116, it is averred that the said third parties be impleaded as Defendant Nos.1(a) to 1(c). However, in Paragraphs 3 and 4, it was prayed that the third parties/Applicants be ordered to be impleaded as Defendant Nos.14 to 16. On the said application, the Advocate for the 1st Respondent/Plaintiff endorsed is reply in writing in which he stated that the Plaintiff has no 3 objection if the third parties/applicants were impleaded as Defendant Nos. 14 to 16. 6. Therefore, though no fault can be found with the order passed below application at Exhibit-116, the applicants in the said application ought to have been impleaded as party Defendant Nos.14 to 16 inasmuch as the suit stands abated as against the 1st Defendant. In the circumstances, the 1st Respondent/Plaintiff will have to be directed to amend the plaint accordingly. As the application for setting aside the abatement of the suit as against the 1st Defendant is not made as of today, the trial Court has to pass a formal order recording abatement of the suit as against the 1st Defendant if the legal representatives of the said Defendants are not otherwise on record. 7. Hence, the Petition is disposed of by the passing following order. (a) It is clarified that by an order dated 2nd December, 2008 passed below the application at Exhibit-116, the Respondent Nos.1(a) to 1(c) were ordered to be impleaded as the Defendant Nos.14 to 16. (b) The 1st Respondent/Plaintiff is directed to delete the names of the Defendant Nos.1(a) to 1(c) and carry out 4 amendment in terms of the order passed below application at Exhibit-116 for impleading the Applicants therein as the Defendant Nos.14 to 16. (c) Necessary amendment shall be carried out by the 1st Respondent/Plaintiff within a period of four weeks from the date on which the writ of this order is received by the trial Court. (d) The Writ Petition is disposed of in above terms. (A.S.OKA, J)