1 WP 9372/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9372 OF 2010 Prestine Developers Pvt. Ltd. .. Petitioner V/s Hiralal L. Gupta & Anr. .. Respondents Mr. P.S. Dani with Mr. D.V. Deokar, Mr. V.P. Shroff, Ms. Taniya Jhony, Ms. Swati Kapoor i/b Parima K. Shroff & Co. for the petitioner. CORAM : D.G. KARNIK, J. DATE : 9TH DECEMBER 2010 P.C. : 1. Heard. 2. By this petition, the petitioner (defendant no.2) challenges the order dated 5th October 2010 passed by the City Civil Court, Greater Mumbai, allowing the application of the respondent no.1 (original plaintiff) permitting him to join Akruti Nirman Limited as a party defendant no.1 to the suit. 3. The respondent no.1 (hereinafter referred to as “the plaintiff”) filed a suit (S.C. Suit No. 2230 of 2008) against Akruti Nirman Limited – the respondent no.2 (hereinafter referred to as “original defendant”) for an injunction restraining the original 2 WP 9372/10 defendant from disturbing and obstructing his possession and/or digging any pits in the suit premises alleged to be belonging to the plaintiff. The petitioner (hereinafter referred to as “the added defendant no.2”) appeared in the suit and made an application that it was he who was carrying out the construction in the property adjoining to the suit property and the original defendant had nothing to do with the said construction on the adjoining property. He therefore prayed that it should be joined as a party to the suit and the name of original defendant be deleted. That application was allowed. Subsequently, the original plaintiff made an application that the grievance of the plaintiff was against the original defendant who was attempting to carry out the construction on the suit property and therefore he should be rejoined as a party defendant no.1. The application was allowed by the order dated 5th October 2010. That order is impugned in this writ petition. 4. Learned counsel for the petitioner submitted that it is the defendant no.2 who is carrying on the construction in the adjoining property. The original defendant is not carrying out the construction in the adjoining property nor is it carrying out the construction in the suit property and therefore there is no question of joining the original defendant as a party to the suit. 3 WP 9372/10 It has been a contention of the plaintiff all along that the original defendant is trying to disturb his possession and attempting to carry out the construction on the suit property. It is with this grievance that he came to the Court and that grievance which still continues needs to be adjudicated upon. 5. In my view, without the trial of the suit and merely on the basis of an assertion of the added defendant no.2, it cannot be said that the original defendant is not concerned with the suit property nor can it be said that it is not trying to disturb the possession of the plaintiff. It also cannot be said that the original defendant is not attempting to carry out the construction in the suit property. After the evidence is adduced and the trial is concluded, if the trial Court comes to a conclusion that the added defendant is not obstructing the plaintiff but it is the original defendant who is obstructing the plaintiff and/or trying to carrying out the construction on the suit property then the Court would be in a precarious position inasmuch if it would not be in a position to grant any injunction against the original defendant as it is not a party to the suit. The plaintiff would thus be rendered remedyless through on evidence he shows that the original defendant is trying to obstruct his possession. 4 WP 9372/10 6. Mr. Dani for the petitioner submitted that the original plaintiff had not challenged the first order passed by the Court deleting the name of the defendant and therefore his application for adding the name of the original defendant could not have been granted by the Court. It is not necessary for me to consider this issue because the petitioner has approached this Court with a request to exercise extraordinary jurisdiction under Article 227 of the Constitution. The Court is not bound to exercise extraordinary jurisdiction in favour of the petitioner if it is satisfied that the impugned order ultimately is a just order and protects the interests of the parties. The impugned order is a just order and protects the interests of the parties. I therefore decline to exercise extraordinary jurisdiction under Article 227 of the Constitution in favour of the petitioner. The writ petition is accordingly rejected. (D.G. KARNIK, J.)