wp1811.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1811 OF 2011 MAHESH SUBHASH DHUMAL. ... PETITIONER. VERSUS SHAHAJI SUDHAKAR PATIL AND ANR. ... RESPONDENTS. ... Advocate for Petitioner: Mr. Patil Indrale Anand V. Respondents 1 & 2 Served - absent. ... CORAM : S.S. SHINDE, J. Dated: August 26, 2011 PER COURT: 1. This petition is directed against the order dated 21st September, 2010 passed by the Ad-hoc District Judge-1, Nilanga below Exh.45 in RCA No.60 OF 2006. 2. The background facts as stated in this writ petition are, as under: wp1811.11 2 The respondent No.2 herein has instituted RCS No.60/2004 before the Court of CJ.S.D., at Nilanga claiming the relief of partition and separate possession. In the said suit, one of the properties i.e. land Gut No.77(B)(2) admeasuring 2H 90R was mentioned as suit property, out of which land to the extent of 70R was purchased by one Madhav Bapurao Patil on 17.5.1985 and subsequently, the said land was purchased by Apparao Dhumal i.e. grandfather of the petitioner and in the partition amongst family members of the petitioner the said land has come to the share of the petitioner and mutation entry no.755 has been sanctioned to that effect on 16.10.1989. It is case of the petitioner that despite this position, though the name of the petitioner was appearing in the 7/12 extract of the land Gut No.77(B)(2) admeasuring 2H 90R to the extent of 70R, neither the petitioner nor his grandfather and his vendor Mr. Madhukar Bapurao Patil were added as defendant in the suit and the said suit came to be decided behind wp1811.11 3 their back. The petitioner, therefore, filed RCS NO. 403 of 2008 praying the relief that the decree passed in RCS NO.60/2004 is null, void and not binding on the petitioner, since petitioner was not party to that suit. 3. The petitioner contends that he had also filed an application Exh.45 in RCA No.60/2006 pointing out that though he was necessary party, he was not added as party in the RCS NO.60/2004 and that he be added as party to the appeal. However, by the impugned order, the said application came to be dismissed. 4. The learned Counsel appearing for the petitioner submits that the present petitioner is L.R. of Apparao Dhumal who had purchased the said land from one Madhav Bapurao Patil. One Mr.Sudhakar Patil who is brother-in-law of the plaintiff sold this property to the grand father of the petitioner. It is further submitted that the revenue record i.e. wp1811.11 4 mutation entry no.755 has been sanctioned and name of the petitioner is appearing in 7/12 extract in respect of said land. The learned Counsel for the petitioner submits that the trial Court, in para 6 of the impugned order observed that the petitioner herein was necessary party in RCS No.60/2004. However, since the application was filed at the appellate stage, the Court below declined to add petitioner as party. Hence, this petition. 5. Though the respondents are duly served, none appears for them. Therefore, the averments in this petition remained un-controverted. Hence, the case of the petitioner will have to be accepted. Paragraph 6 of the impugned order reads, thus: "6. The position is undisputed about the affairs of R.C.S. No.60/2004 referred above. 7/12 extract at Exh.12 no doubt shows that the present petitioner is the owner of 70R portion from land Gat No.77/B(2) which was the subject matter of R.C.S. No.60/2004 filed by the respondent No.1. In view of this position, the respondent No.1 ought to have made present petitioner, then Madhav Patil and Apparao wp1811.11 5 Dhumal as defendant in the said R.C.S. No. 60/2004. However, for one or other reason, the said suit came to be decreed in absence of present petitioner and his vendors. In literally sense the present petitioner and his vendors Madhav Patil and Apparao Dhumal can be presumed as necessary parties to the suit of respondent No.1 - plaintiff for partition being purchasers. Question is whether at this stage the petitioner can be added as party." 6. If the aforesaid para 6 is carefully perused, there is no manner of doubt that the petitioner was necessary party in the RCS NO.60/2004 which was filed by the respondent no.2 herein. It is well settled by this time that the appeal is continuation of the suit and to set at rest the controversy involved in the appeal, the appellate Court should have entertained the application filed by the petitioner under Order I, Rule 10 of the Code of Civil Procedure. Therefore, in my considered view, the petitioner herein was necessary party in RCS NO.60/2004. In fact, it was incumbent upon the plaintiff - respondent No.2 herein to add the petitioner as defendant to the said suit. The learned Counsel for the petitioner also informed this Court that a suit has also been filed by the wp1811.11 6 petitioner before the same Court seeking declaration that the said judgment and decree passed in RCS NO. 60/2004 is not binding upon him since he was not joined as defendant in the said suit. 7. The provisions of Order I, Rule 10(2) of the C.P.C. reads, thus: "(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." Perusal of the sub-rule (2) of Rule 10 of Order I of the Code, makes it clear that if the party whose presence before the Court is necessary to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit, such wp1811.11 7 person is required to be added as a party. 8. Therefore, in the light of what is held by the appellate Court in para no.6 of the impugned order and since the appeal is continuation of suit, the petitioner herein is necessary party in the appeal to set at rest the controversy raised in the appeal. 9. In that view of the matter, the impugned order rejecting the application of the petitioner is quashed and set aside. The application (Exh.45) filed by the petitioner is allowed. The respondent No.1 is directed to take necessary steps to add the petitioner herein as party respondent in the said appeal. Writ Petition is allowed in the above terms and stands disposed of. [ S.S. SHINDE ] JUDGE. ... PLK/*