1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1624 OF 2009 Kunal s/o Ashokrao Aher and ors. PETITIONERS. V E R S U S Goverdhan s/o Mohanlal Karva and ors. RESPONDENTS. Shri S.B. Bhapkar, Advocate for the petitioners. Smt. Anjali Dube for R-1,3,4 ,8 to 10 CORAM : B.R. GAVAI, J : DATE : 2nd JULY, 2009 PER COURT :- 1. By way of present petition, the petitioner challenges the order passed by the learned Civil Judge (S.D). dated 17.01.2009 thereby rejecting the application filed by the present petitioner for joining him as party defendant. 2- The respondent No.1 has filed suit for specific performance against the parents of the present petitioner. In the said suit, an application came to be filed for joining them as party defendants. The said application is rejected. Hence, the present petition. 3- Shri Bhapkar, the learned counsel appearing on behalf of the petitioner submits that for complete and effective adjudication of the dispute between the parties the learned court ought to have allowed the application and permitted the present petitioners to be 2 joined as party-defendants. 4- The learned counsel relies on the judgment of Apex Court in the case of Amit Kumar Shaw and another vs. Farid Khatoon and another reported in 2005 (3) Mh.L.J 330 and judgment of this court in the case of Rashtriya Mill Mazdoor Sangh vs. Empress Mills, Nagpur reported in 2007 (5) Mh.L.J. 701. 5- The suit has been filed by the respondent No.1 for specific performance on the basis of an agreement of sale. It is the contention of the present petitioners that property is a joint family property and as such, their parents did not have right to execute such an agreement. 6- It is settled law that the plaintiff is a dominum Litus and it is his choice as to who shall be the parties to the suit. If the plaintiff does not join the parties who are necessary for adjudication of the suit, he suffers the risk of facing consequences for non joinder of necessary parties. 7- In so far as reliance placed on the judgment of Apex Court in the case of Amitkumar is concerned, it can be seen that Apex Court in para No. 9 has observed that : “Under Order 1 Rule 10, of Civil Procedure Code, the Court is empowered to add a party to suit in following two cases : i) When he ought to have been joined as plaintiff or defendant, and is not joined so or 3 ii) when without his presence, the questions in the suit cannot be completely decided. 8- In the present suit, the parents of the present petitioner have already taken a defence that the agreement to sell on which the plaintiff relies is a forged document. As such, it could clearly be seen that the suit is being contested by the parents of the present petitioners. The question is as to whether the plaintiff is entitled for specific performance of an agreement executed in his favour by the defendant to the suit. As such, the only necessary parties would be the vendors and vendees. The said issue can be decided by the presence of vendor and vendee in the proceeding. In any case, it has to be noticed that the present application is also filed after a period of five years from the institution of the suit. 9- The learned trial court has found that the application was nothing else but an attempt to protract the proceedings by the present petitioners. Jurisdiction under order 1 Rule 10 of the Civil Procedure Code is a discretionary one, unless said jurisdiction is found to be exercised in perverse manner, no interference would be warranted. No perversity or infirmity could be found with the approach adopted by the trial court so as to warrant interference in exercise of extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Hence rejected. ( B. R. GAVAI ) JUDGE aaa/wp1421.09 ****