1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.339 OF 2003. Shri Pedro Fernandes, aged about 70 years, agriculturist, resident of House No.30/2, Vagonna, Tilamol, Xeldem, Quepem, Goa .. Petitioner Versus (1) Shri Pedro Concessao Mario Gonsalves, resident of House No.146, Vithalamoddi, Quepem, Goa (2) Smt. Rumaldino Dourado, wife of Pedro Concessao Mario Pinto, major of age, resident of House No.146, Vithalamoddi, Quepem, Goa (3) Cabido de Se Primacial de Goa, represented by its Attorney Shri Benjamin Fernandes, r/o H.No.13-A Near the Bridge, Quepem- Goa. .. Respondents. Mr. C.A.Ferreira, Advocate for the petitioner. Mr. R. G. Ramani, Advocate for the respondent Nos.1 and 2. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondent No.3. CORAM :- A. P. Lavande,J. DATE : 14 th July, 2009 . ORAL JUDGMENT : 1. By this petition, the petitioner takes exception to 2 the order dated 09.05.2003 passed by the Civil Judge, S. D., Quepem in Regular Civil Suit No.9/2003/A allowing two applications under Order I, Rule 10(2) of Civil Procedure Code one filed by the respondent Nos. 1 and 2 and the second one filed by the respondent No.3. 2. The petitioner is the original plaintiff in the above suit and the respondent Nos. 1 and 2 are the defendants in the said suit. The plaintiff filed above suit claiming the following reliefs against the defendant Nos. 1 and 2 : “A) By the decree of this Hon. Court in the nature of permanent injunction. The defendants, their agents, servants, family members etc be restrained permanently from doing any construction, extension or erection of any structure in the suit property bearing survey No.152/4B or interfering in any manner whatsoever with the suit property except occupying the old house of Manuel Gonsalves. B) By the order of Mandatory injunction the defendants be directed to demolish and remove the constructions and/or extensions made in the suit property beyond the plinth area of 125 sq. meters of the house of Manuel Gonsalves and to maintain and keep the land to its original position.” 3 The defendant Nos. 1 and 2 filed their written statement contending that the suit property bearing Survey No.152/4/B does not belong to the plaintiff but belongs to the respondent No.3 herein. Thereafter, the defendant Nos. 1 and 2 as well as the respondent No.3 herein filed two separate applications under Order I, Rule 10(2) of Civil Procedure Code for joinder of the respondent No.3 as a party defendant in the suit. The same was opposed by the plaintiff and by the impugned order, the Trial Court allowed the application. The plaintiff has challenged the said order by filing the present petition. 3. Mr. Ferreira, the learned Counsel for the petitioner/ plaintiff submitted that since the suit is simplicitor for injunction and mandatory injunction and since no relief is claimed against the respondent No.3, the Trial Court ought not to have allowed the applications filed by the respondents. He further submitted that in earlier litigation between the parties, the Trial Court had held that title in respect of the suit property was vested in the plaintiff and not in favour of the respondent No.3 herein and as such the question of joining the respondent No.3 either as a proper or necessary 4 party, does not arise. He invited my attention to the pleadings of the plaintiff and the defendant Nos. 1 and 2 as well as judgment dated 12.12.2001 passed in Regular Civil Suit No.36/1978/B filed by the respondent No.3 against the petitioner and his wife. The learned Counsel further submitted that the plaintiff is dominus litis and he cannot be compelled to join a party in the suit against his wish. For support of his submissions, Mr. Ferreira relied upon the following authorities : i) Gonsalo De Filomena Luis V. Inacio Piedade Hildeberte Fernandes reported in AIR 1977 Goa, Daman and Diu 4. ii) Khadar Khan M. Khan Versus Bombay Municipal Corporation & Ors reported in 1993 Current Civil Cases 644. 4. Per contra, Mr. Ramani, the learned Counsel for the respondent Nos.1and 2 submitted that the respondent No.3 is the owner of the suit property and the defendant Nos. 1 and 2 are the mundkars in respect of the structure existing in the suit property and the tenants in respect of remaining portion of the property. He, therefore, submitted that the respondent No.3 is a proper party though not a necessary party to the suit. He further submitted that the Trial Court has not committed any jurisdictional error while passing the 5 impugned order and the impugned order is in consonance with Order I, Rule 10(2) of Civil Procedure Code. 5. Mr. D'Costa,the learned Senior Counsel for the respondent No.3 submitted that although the plaintiff is the dominus litis, the respondent No.3 is a proper party in the suit in as much as the suit property belongs to the respondent No.3 and although by the judgment and order dated 12.12.2001 passed in Regular Civil Suit No.36/78/B the Trial Court has dismissed the claim of title to the suit property by the respondent No.3, Second Appeal No.38/2005 filed by the respondent No.3 against the judgment passed by the Additional District Judge confirming the judgment passed by the Trial Court, has been admitted by this Court. Mr. D'Costa further submitted that the respondent No.3 though not a necessary party, is a proper party in the suit since the respondent No.3 is the owner of the suit property and as such the presence of the respondent No.3 is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. In support of his submissions, Mr.D'Costa placed reliance upon the following judgments : i) Kasturi Versus Iyyamperumal reported in 2005(3) Mh.L.J. 1 6 ii) Chitralekha Builders and another Versus G.I.C. Employees Sonal Vihar Co-op. Housing Society Ltd. reported in 2005(5) Bom. C.R. 764. 6. I have considered the rival submissions made by the learned Counsel for the parties and perused the record. The question, which arises for consideration is whether the Trial Court has committed any jurisdictional error while allowing the applications filed by the respondent Nos. 1 and 2 as well as the respondent No.3. 7. Mr. Ferreira has not seriously disputed that the Second Appeal No.38/2005 preferred by the respondent No.3 against the judgment passed by the Additional District Judge, South Goa, Margao confirming the decree passed by the Trial Court in Regular Civil Suit No.36/78/B has been already admitted by this Court and that it is pending for final disposal. Undisputedly, in Regular Civil Suit No.36/78/B, the respondent No.3 had claimed title to the suit property. In this factual background, the question, which arises for consideration is whether the respondent No.3 is a proper party in the suit filed by the petitioner. In the case of Kasturi (supra) relied upon by Mr. D'costa, three judge Bench of the Apex Court has observed thus : 7 “From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.” In the case of Khadar Khan M. Khan (supra) relied upon by Mr. Ferreira, the learned Single Judge of this Court has held that the plaintiff is the dominus litis and it is his choice to whom he will implead as a party defendant to the suit. Similar ratio has been laid down by the Court of Judicial Commissioner in the case of Gonsalo de Filomena Luis (supra) relied upon by Mr.Ferreira. 8. The learned Counsel appearing for the respondents have fairly conceded that the respondent No.3 is not a necessary party to the suit but, according to the learned Counsel, the respondent No.3 is a proper party. I 8 find considerable merit in the submission advanced on behalf the respondents. In the case of Kasturi (supra), the Apex Court has held that proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit is claimed against such persons. In the present case, it is the case of the respondent Nos. 1 and 2 as well as the respondent No.3 that the suit property is owned by the respondent No.3 and not by the petitioner/ plaintiff as claimed by him. Moreover, Second appeal filed by the respondent No.3 claiming title to the suit property is pending in this Court. Therefore, in my considered opinion, the respondent No.3 is a proper party though not necessary party to the suit. In my view, the ratio laid down in the case of Kasturi (supra) is squarely applicable in the present case. No doubt, the plaintiff is the dominus litis but if the presence of a party is necessary in order to enable the Court to adjudicate effectually and completely all the questions involved in the suit, such a party being a proper party, can be joined as a party in the suit in terms of order I, Rule 10(2) of Civil Procedure Code. 9 9. In view of the above discussion, I do not find any jurisdictional error having been committed by the Trial Court while passing the impugned order. Therefore, the writ petition deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. 10. This Court had granted interim order on 11.09.2003 staying further proceedings in Regular Civil Suit No.9/2003/A before the Civil Judge, S. D., Quepem. The interim order is vacated. The parties are directed, either personally or through their Advocates, to appear before the Trial Court on 12.08.2009 at 10.00 a.m. Since the suit is of the year 2003, the Trial Court to dispose of Regular Civil Suit No.9/2003/A expeditiously and in any case, within a period of two years. A. P. LAVANDE, J. SMA