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1998 DIGILAW 685 (BOM)

Govind Sinai Orti since deceased, through his heirs and legal representatives v. Govind Usno Bhobe and others

1998-12-02

R.M.S.KHANDEPARKAR

body1998
JUDGMENT - R.M.S. KHANDEPARKAR, J.:---The petitioner challenges the Order dated 14th August 1995 passed by the Civil Judge, Junior Division, Panaji, in Regular Civil Suit No. 16 of 1982/C. By the impugned Order, the trial Court has allowed two applications filed by the respondents herein. 2. One of the applications is Civil Miscellaneous Application No. 388 of 1994/C whereby the respondent No. 4 has sought to intervene in the said suit on the ground that by deed of declaration dated 17-9-1951 between the petitioner and one Vaman Baburao Bhobe, the building in question was gratuitously transferred in the name of the respondent No. 4, which was then unregistered society, and that since the said society has now been registered under No. 41/Goa/94 since 3rd March 1994, the same is necessary and essential party to the suit. 3. The Civil Miscellaneous Application No. 389 of 1994/C was filed by the respondents Nos. 1 and 2 herein on the ground that the respondent No. 4 has been already registered after filing of the suit and is, therefore, a juridical person or a legal entity and, therefore, should be joined in the suit as necessary and essential party along with the respondent No. 5, who is the son of Vaman Bhobe who had entered into an agreement of declaration dated 17-9-1951 with the petitioner and that no relief can be granted in the suit in the absence of the respondents Nos. 4 and 5. 4. The trial Court by the impugned Order holding that the petitioner in his cross-examination before the trial Court has admitted that the petitioner and the heirs of Vaman Bhobe are legally bound to transfer the entire property consisting of the plot, the premises, furniture, etc. in the name of the Working Committee of Nerulkar Brahmin Samaj, allowed the applications. However, simultaneously the trial Court held that the respondent No. 4 is not a necessary party to the suit but in order to completely adjudicate the matter and to avoid the multiplicity of proceedings, both the respondents Nos. 4 and 5 are to be joined as parties to the proceedings. 5. However, simultaneously the trial Court held that the respondent No. 4 is not a necessary party to the suit but in order to completely adjudicate the matter and to avoid the multiplicity of proceedings, both the respondents Nos. 4 and 5 are to be joined as parties to the proceedings. 5. Upon hearing the learned advocates for the parties and on perusal of the record, it is seen that the petitioner has filed the suit for a decree in favour of the petitioner declaring that the lease agreement dated 15-10-1972 is null and void and for further direction to the respondents Nos. 1 to 3 to pay to the petitioner rent for the five years previous to the filing of the suit. The case of the petitioner is sought to be disputed by the defendants in the suit on various grounds and the defendants Nos. 1 and 2 have filed counter-claim seeking relief of declaration of the ownership of the property in favour of Nerulkars Brahmin Samaj. 6. As the suit stands, the grievance of the petitioner is only relating to the lease agreement dated 15-10-1972 and the claim for rent in respect of the suit premises for five years prior to the filing of the suit. The claim of the petitioner is against the three defendants against whom the suit has been filed. The case pleaded by the plaintiff in the plaint does not disclose any grievance against any third party so as to justify the joinder of any such party in order to finally adjudicate the claim put forth by the plaintiff. It is well settled that the plaintiff is the master of the suit and it is for the plaintiff to chose as to who should be joined as parties to the suit in order to succeed in obtaining the relief prayed for by him or her in the suit. In case of failure on the part of the plaintiff to join the necessary party, it is the plaintiff who is bound to suffer for his fault, but that cannot justify the defendants to insist upon the joinder of any party of the choice of the defendant. In any case, the respondents herein have not disclosed any justification for joinder of the respondents Nos. In any case, the respondents herein have not disclosed any justification for joinder of the respondents Nos. 4 and 5 for the purpose of adjudication of the claim of the plaintiffs in the suit and hence they cannot be said to be necessary and proper parties to the suit. Merely because the petitioner, in the course of deposition, has stated before the trial Court that the heirs of Vaman Bhobe are legally bound to transfer the entire property in the name of the Working Committee of Nerulkars Brahmin Samaj, that by itself cannot be justification for the said society or for the respondents in the present petition to insist upon the petitioner to join the heirs of Vaman Bhobe or the said society as the parties to the present suit. 7. There is no doubt that under Order I, Rule 10 of C.P.C. the Court is empowered to join any person to the suit when such a person is necessary for determination of real matter in dispute. Moreover, as already observed above, the respondents have not been able to make out any case for joinder of the respondents Nos. 4 and 5 as the parties necessary for determination of the real matter in dispute. The matter in dispute pertains only to the lease agreement and the claim for rent. In the absence of any justification by the respondents for the joinder of respondent Nos. 4 and 5 as the necessary parties for determination of the real dispute in the suit, the trial Court has clearly acted with material irregularity in allowing the said application and ordering joinder of the respondents Nos. 4 and 5 to the suit. The trial Court in that regard has certainly not exercised its jurisdiction judiciously and, therefore, the impugned order cannot be sustained. 8. The petition therefore succeeds. The impugned order is quashed and set aside with no order as to costs. The interim relief is vacated. Rule is made absolute in the above terms. Petition succeed.