SRJ 1 wp-4767-2240-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4767 OF 2009 WITH WRIT PETITIION NO.2240 OF 2009 Rachojirao S. Jadhav-Desai .. Petitioner vs. Shri Subrao R. Jadhav-Desai & Others .. Respondents Mr.S.M.Kamble, for Petitioner in both the Petitions. Mr. Rahul Kulkarni, for Respondent No.6 in W.P.No.4767 of 2009. CORAM :A.S.OKA,J. DATE :1st APRIL,2010 P.C.:- 1] Notice of final disposal was issued by this Court under the earlier order dated 27 th July, 2009. The learned counsel appearing for the Petitioner states that notice had been duly served to the Respondents. The 6 th Respondent in Writ Petition No.4767 of 2009 is represented by Mr. Kulkarni. None appears for rest of the Respondents in the Writ Petitions. The facts of the case in these Writ Petitions are more or less identical and, therefore, a reference is made to the facts of the case in Writ Petition No.4767 of 2009. 2] The Petitioner is the Plaintiff. The 1 st to 5 th Respondents are the Defendants. Initially, suit was filed by the Petitioner for injunction restraining the 1 st to 3 rd SRJ 2 wp-4767-2240-09.sxw Respondents from executing the sale deed in respect of the suit property either in favour of 4th and 5th Respondents or any other person. It was also contended that the sale deeds dated 18 th November, 2006 were null and void. Therefore, injunction was sought against the 2 nd to 5 th Respondents from interfering with the possession of the Petitioner. During the pendency of the suit an amendment was carried out to the plaint. A Prayer (BB) was added to the plaint to the effect that a mandatory injunction be granted against the Respondent Nos.3 to 5 and one Amal M. Mahadik (the 6 th Respondent) for re-construction of the houses on the suit property which according to the Petitioner were allegedly demolished by the said Respondents. An application at Exhibit 155 under Rule 10(2) Order I of the Code of Civil Procedure, 1908 was made by the Petitioner. The said application was made for impleading the said Amal M. Mahadik as a party Defendant. It was contended in the said application that taking undue advantage of the fact that an order of injunction was vacated, the Respondent Nos.3 to 5 and said Amal M. Mahadik demolished the structures on the suit property and obtained possession thereof. By impugned order, the said application has been rejected by holding that the party sought to be added is a Constituted Attorney of the Respondents Nos. 3 to 5 who were defendants in the suit and therefore, the said third party will be bound by the decree which may be passed against the said Defendants. SRJ 3 wp-4767-2240-09.sxw 3] The learned counsel appearing for the Petitioner submitted that in view of the prayer (BB) permitted to be added to the Plaint, the said Amal M. Mahadik(6 th Respondent) was a necessary and proper party as allegation made against him is that he along with the other Defendants demolished structures on the suit property and obtained possession thereof. 4] The learned counsel appearing for the 6 th Respondent in Writ Petition No.4767 of 2009 submitted that in the amended plaint, there are no material allegations against the 6 th Respondents who was sought to be impleaded as a defendant. He submitted that in fact, said Respondent acted as the Constituted Attorney of the Respondent Nos.3 to 5. He submitted that a Constituted Attorney of a party Defendant is neither a necessary nor a proper party. He placed reliance of this court in case of Harbari Sons Ltd., vs. Kishor R. Chhabriya [2000 (3) M.L.J. 550]. 5] I have given careful consideration to the submissions. Amended prayer (BB) of the plaint suggests that apart from the Respondents Nos.3 to 5, the third party Amal M. Mahadik has played a role in demolition of the houses on the suit property and in the act of allegedly taking possession of the suit property. Prayer clause (BB) has been permitted to be added seeking a relief against the said Amal M. Mahadik(the 6 th Respondent) and, therefore, there is no reason for denying permission to implead the said Amal M. Mahadik(the 6 th Respondent) as a party Defendant. Therefore, the SRJ 4 wp-4767-2240-09.sxw impugned orders will have to be quashed and set aside and the application will have to be allowed by keeping all contentions of the third party expressly open. 6] Hence, I pass following order:- (i) The orders impugned in both the Petitions are quashed and set aside ; (ii) The application at Exhibit 155 in suit No.1252 of 1988 is allowed. The Application at Exhibit 113 in Suit No.66 of 1989 is allowed; (iii) Amendment shall be carried out within a period of two weeks from the date on which writ of this order is received by the Trial Court. It will be open for the other Defendants to file additional Written Statement, raising all contentions within a period of eight weeks from the date on which they are served with the amended copy of the plaint. It will be open for the added Defendant to file a Written Statement. (iv) All contentions on the merits of the suits are expressly kept open. (v) The Petitions are allowed on the above terms with no order as to costs. (A.S.OKA,J.)