1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6551 OF 2009 1 Waman s/o Nago Choudhari age 84 years, occ. business r/o Kusumba Tq. & Dist. Dhule. 2 Krishna s/o Nago Choudhari age 78 years, occ. business r/o as above. 3 Sadashiv s/o Garbad Choudhari age 54 years, occ. business r/o as above. .. PETITIONERS VERSUS 1 Mahadu Nago and Brothers through its partner Mahadu s/o Nago Choudhari age 78 years, occ. business r/o Kusumba Tq. & Dist. Dhule. 2 Lasur Upsa Jalsinchan yojana Tq. Chopda, Dist. Jalgaon through Liquidator Lasur Upsa Jalsinchan Yojana Tq. Chopda, Dist. Jalgaon. 3 The Jalgaon District Central Co-operative Bank Ltd, Jalgaon Tq. & Dist. Jalgaon. 4 Borase patil Associates Consultancy 2 Devpur, Dhule Dist. Dhule. .. RESPONDENTS Mr. S.P. Deshmukh, Advocate for the petitioners. Mr. V.D. Hon with Mr. A.K. Tiwari, Advocates for respondent no. 1. Mr. D.B. Thoke, Advocate for respondent no. 3. ===== CORAM : R. M. BORDE, J. DATE : 16th APRIL, 2010 ORAL JUDGMENT : 1 Heard. 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Petitioner is raising exception of the order passed below exh. 205 in Special Civil Suit no. 1/2004 thereby rejecting the application presented by the petitioner seeking his impleadment in the pending suit presented by respondent no. 1 herein against the State Government. 4 Respondent no. 1 has presented a suit being Special Civil Suit no. 1/2004 claiming recovery of money towards damages on account of breach of contract. It is not necessary to go into the factual aspects of the matter. Suffice it to note that the plaint discloses that the suit is presented by 3 respondent no. 1 on behalf of the partnership firm. The third party applicants claim that they are the partners of the firm. The firm is not yet dissolved and is in existence. The statement appearing in the plaint that the firm is dissolved is incorrect and the claim is raised by respondent no.1 on the basis of certain forged and fabricated documents. It is contended that respondent no. 1 / original plaintiff is trying to get financial benefits by misrepresenting the court as well as the partners of the firm. It is therefore contention of the third party applicants that their presence in the pending suit filed by respondent no. 1 herein is essential for proper adjudication of the dispute. Although the plaintiff has stated in the plaint that the partnership firm is registered in accordance with the provisions of law and the suit is presented on behalf of the partnership firm, contention is raised by original plaintiff while replying the contents of the application presented by the third party applicants that the firm is already dissolved in the year 1992. Document of dissolution of the firm is placed on record. Said document was presented with the registering authority and the entry in respect of dissolution of the firm has been recorded by the Registrar of Firms on 30-12-2004. The third party applicants have raised serious doubt for the authenticity of the document on which respondent no. 1 / original plaintiff places reliance for contending that the partnership firm has been dissolved. It is also 4 contended by the third party applicants that separate writ petition is presented seeking directions against the Registrar of Firms to the effect that the partnership firm still continues and further direction is sought to take action against the respondent no. 1. In these circumstances, it is contended that the interest of the firm would not be in safe hands and the plaintiff is not likely to prosecute the litigation diligently. To controvert the contentions raised by the third party applicants, it is contended by respondent no. 1 / original plaintiff that as per the terms of the document of dissolution, it is the responsibility of respondent no. 1 to initiate litigation in respect of recovery of amount and prosecute the same. It is further contended that the deed of dissolution of partnership was presented with the registering authority long back and order has been passed by the registering authority in 2004 itself. Instant suit is presented in 2004 whereas issues in the matter are framed long back. Plaintiff has led evidence to support the contentions raised in the plaint. Thus, it is contended that recording of evidence on behalf of the plaintiff is complete and the case is posted for recording of evidence of the defendants. Application is presented by the third party applicants at the fag end of the proceeding. It is further contended that the third party applicants are trying to expand the scope of litigation. Respondent, in the alternate, contends that it is open for the third party applicants to raise 5 appropriate dispute before the appropriate forum and even, the decree passed in the instant proceeding can be subjected to challenge in the collateral proceeding. It is further contended that the presence of third party applicants is neither necessary for determination of controversy arising in the matter nor they are proper parties to the suit. It is further contended that the application which is presented at belated stage need not be considered favourably. 5 Learned counsel for the petitioner has vehemently contended that considering the facts stated in the application and considering the nature of the controversy as regards existence of the partnership firm, the presence of third party applicants in the proceeding is necessary. It is contended that, in the circumstances, it cannot be said that the third party applicants are neither necessary nor proper parties to the suit. Learned counsel for the petitioner seeks leave to place reliance on a judgment in the matter of Chitralekha Builders and another vs. G.I.C. Employees Sonal Vihar Co- operative Housing Society Ltd. and others reported in 2005(4) Mh.L.J. 360. It is contended by learned counsel for the petitioners placing reliance on the judgment cited supra that in the similar circumstances the Division bench of this court while entertaining Letters Patent Appeal raising exception to the 6 order passed by the learned Single Judge of this court has permitted the third party applicants to implead themselves as party. Reliance is placed on observations in paragraph no. 55 of the judgment which speak thus : 55 Having said so, one has to consider the reliefs claimed i the suit by the plaintiff – G.I.C. Society. The plaintiff is claiming specific performance of contract in respect of immovable property viz. suit property; wherein appellants are claiming interest based on documentary evidence, existence and execution of which is not in dispute. The discretion as given in sub-rule(2) of Rule 10 of Order 1 of Civil Procedure Code coupled with the observations made in the case of Udit Narain Singh Malapaharia (supra), would give the sufficient idea regarding meaning of the term “necessary and proper parties”. Reverting back to the facts of the present case on hand, it is clear that the suit property is at stake. Appellants are claiming interest in the suit property. Plaintiff – G.I.C., Society has given no objection for impleadment of the appellants as party defendants. Mrs. Kusum could not demonstrate any prejudice to her interest, if chamber summons of the appellants is allowed. Thus, considering the scope of sub-rule (2) of Rule 10 of Order 1 of Civil Procedure Code, in our view, appellants deserve to be added as party defendants as they ought to have been joined as plaintiffs or, at any rate, as defendants in the suit. Even in the changed scenario, without their presence the issues involved in the suit cannot be completely and effectually adjudicated upon. The interest of the appellants, if any, is bound to be affected in the event they are not allowed to be party to the suit. The appellants are entitled to defend suit. As a matter of fact this is a fit case for exercise of discretion by the Court under Order 1, Rule 10(2) of Civil Procedure Code. However, in view of amendment to the chamber summons and invocation of powers of this Court under Order 1, Rule 10(2), it is not necessary to exercise that power because the same purpose is being served by 7 allowing it in exercise of that powers. . Learned counsel for the petitioners has also placed reliance on the judgment in the matter of Purushototam Umedbhai and company vs. Manilal and sons reported in 1960 AIR (SC) 325. 6 Per contra, it is contended by learned counsel for the respondents that reliance placed on the judgment in Chitralekha’s matter (cited supra) is misplaced. The determinative factor in permitting impleadment of third party applicants to the suit is the ‘no objection’ rendered by the plaintiff in the said suit. The court has thought it proper for permitting impleadment of third party applicant in the suit for the reason that the plaintiffs had no objection for their impleadment and that the defendant who was opposing their impleadment could not demonstrate any prejudice to her interest. Although it is contended by learned counsel for the petitioner that there was also dispute as regards existence of partnership firm raised in the reported matter, still the court permitted the third party applicants to implead themselves as party to the litigation. The court while dealing with the issue has placed reliance on the judgment in the matter of Banarasidass Durgaprasad vs.Panna Lal Ram Richpal, AIR 1969 Punjab and Haryana 57 8 wherein it has been observed thus : . I would prefer to steer a middle course and draw the golden mean. As a rule, the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief.” . The aforesaid judgment has been followed in the matter of Harisha vs. Municipal Corporation, Amravati, 1987(3) B.C.R. 19. . The Division Bench of this court has also taken into account judgment in the matter of Udit Narain Singh Malapaharia vs. Additional Member, Board of Reveue, Bhiar reported in AIR 1963 SC 786. The Apex Court has observed while dealing with the issue thus : . To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled; it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made out whose presence is necessary for a complete and final decision on the question involved in the proceeding. 7 The determinative test would be as to whether the presence of third party applicants would be necessary for complete and final adjudication of 9 the question involved in the case. In the instant matter considering the nature of claim raised in the suit, I am of the opinion that the presence of third party applicants is not necessary for adjudication of the dispute raised in the suit. The suit is presented raising money claim for damages on account of breach of contract arising out of the contractual relationship. Even if, decree is passed in favour of plaintiff in the suit, the same can always be subject to any adjudication or dispute that may be raised by the third party applicants on the basis of partnership agreement or on any other ground. Reference can be made to a judgment of the learned Single Judge of this court in the matter of Devchand Constructions vs. Board of Trustees of The Port of Mormugao and another reported in 2006(5) Mh.L.J. 644. It is observed in paragraph no. 13 of the judgment thus : 13 Sub-rule (2) or Rule 10 of Order 1 of Civil Procedure Code enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code. . One of the factors to be taken into account is as to whether the impleadment of third party applicants in the suit is likely to widen the scope of the enquiry. In the instant matter, the interse dispute between plaintiffs and defendants as partners of the firm either dissolved or not, is being raised 10 before the court. Such adjudication of disputes for settlement of controversy between the partners of the firm is not necessary to be considered while dealing with the issues involved in the suit. Impleadment of third party applicants in the suit thus is likely to widen the scope of enquiry which shall not be permitted. Reliance is also placed on the judgment in the matter of Ramesh Hirachand Kundanmal vs. Municipal corporation of Greater Bombay reported in 1992 (2) SCC 524. The Apex Court has observed in paragraph no. 18 of the judgment thus : . The joining of the party would embarrass the plaintiff and issues not germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is no ground to invoke the power under the rule in such cases. . In the instant matter, considering the facts stated before me, the dispute between the partners interse has got to be resolved by taking recourse to the remedies permissible in accordance with the provisions of law. Interse dispute between the partners of the firm cannot be a matter of adjudication in the pending dispute. 8 Distinguishing feature in Chitralekha’s matter (cited supra) on which reliance is placed by the petitioners and the instant matter is that the plaintiff 11 in the reported matter was a consenting party for impleadment of third party applicants whereas in the instant matter, plaintiffs are opposing impleadment of third party applicants. The court has also observed while turning down the application that the question as regards existence of the firm or dissolution thereof also can be considered while dealing with the issue in respect of permissibility to grant relief in favour of the plaintiff. Apart from these aspects, belated application tendered by the third party applicants need not be entertained for the reason that the suit is presented in the year 2004 and the issues were already framed in the year 2005, and, as has been reported by learned counsel for the respondent, recording of evidence of the plaintiffs is already over and the case is posted for recording of evidence of the defendants. In such circumstances, in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India, no interference is called for at this stage. Petition is devoid of substance and therefore needs no interference. Rule is discharged. No costs. ( R. M. BORDE, J.) dyb/office/wp6551.09.odt