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2017 DIGILAW 1930 (BOM)

DIVYA BUILDERS v. SUHASINI MANKIRAO POPATKAR

2017-09-15

S.C.GUPTE

body2017
JUDGMENT : Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith and taken up for hearing with consent of counsel for the parties. 3. The writ petition challenges an order passed by 8th Joint Civil Judge Senior Division, Nagpur rejecting an application for impleadment of third parties as party defendants to the petitioner’s suit, under Order 1, Rule 10 (2) of the Code of Civil Procedure. 4. The suit is for specific performance of contract and permanent injunction. The suit is on the basis that the original defendant claimed ownership of 429.67 sq. meters from out of the land bearing Survey No. 4332 at Mouza-Babulkheda, Nagpur. It is the plaintiff’s case that the defendant represented to it that she became such owner by virtue of a family settlement-cum-partition deed dated 12th September, 2005. (The balance property forming part of Survey No. 4332 has already been conveyed to the plaintiff by the other co-sharers, who are family members of the defendant.) It is the plaintiff’s case that on 13th March, 2004, the defendant along with other joint owners and one Ahdeo Kisan Chaure executed an agreement for development in favour of the plaintiff, agreeing to allow the plaintiff to develop the entire land forming Survey No. 4332 for a valuable consideration mentioned in the agreement. It is the case of the plaintiff that after this development agreement, the defendant and other co-owners partitioned the land amongst themselves vide memorandum of partition deed dated 12th September, 2005, as per which, as noted above, the suit land came to the share of the defendant. After this mutual partition, it is the plaintiff’s case that the parties to the document got their respective names mutated in revenue and city survey record. After these mutations were made, all co-owners of the property save and except the defendant and three others executed sale deeds in respect of their respective shares in favour of the plaintiff in accordance with the agreement of development dated 13th March, 2004 and to the extent of the shares mentioned in the memorandum of partition deed dated 12th September, 2005. It is the plaintiff’s case that there were some disputes concerning the agreement for development dated 13th March, 2004 as between the plaintiff and the defendant, and with a view to resolve this dispute, an agreement was entered into between them on 25th June, 2010, whereby the plaintiff agreed to purchase the defendant’s share of the property bearing Survey No. 4332 at and for the valuable consideration mentioned in this agreement. The plaintiff claims to be ready and willing to perform its part of the contract under this agreement and alleges breach or refusal on the defendant’s part to perform her part and accordingly, seeks a decree for specific performance of the agreement dated 25th June, 2010 against the defendant and other consequential reliefs. 5. The defendant, by her written statement filed in the suit, inter alia claims that the plaintiff had forcefully and coercively obtained the signature of the defendant’s lawful attorney Shri Prashant Popatkar on the original development agreement dated 13th March, 2004 and also family settlement-cum-partition deed dated 12th September, 2005 in connivance with Shri Ahdeo Kisan Chaure in the circumstances mentioned in paragraph No. 37 of the written statement. In other words, the defendant not only contests the development agreement dated 13th March, 2004 but also the family settlement-cum-partition deed dated 12th September, 2005. In the premises, it has become necessary, according to the plaintiff, to arraign all the co-owners of original City Survey No. 4332 as party defendants to the present suit. If, for any reason, the family settlement-cum-partition deed dated 12th September, 2005 is held to be invalid, co-owners of the property would be co-owners of undivided shares and would be necessary parties to the suit. 6. Considering the facts and circumstances narrated, and relief claimed, in the plaint, the application for impleadment of the proposed defendants was very much in order and ought to have been allowed. The trial Court, in its impugned order, has rejected the prayer for impleadment on two grounds. Firstly, the trial Court has held that the matter was old and the plaintiff was not diligent to prosecute the matter. This ground, really speaking, is neither here nor there. It is not disputed that on the date when the application was moved, the trial had not commenced. Firstly, the trial Court has held that the matter was old and the plaintiff was not diligent to prosecute the matter. This ground, really speaking, is neither here nor there. It is not disputed that on the date when the application was moved, the trial had not commenced. If the trial had not commenced, there was really no question of considering the delay on the part of plaintiff unless it worked some manifest prejudice to the defendant which cannot be compensated in terms of money. There is no case of either any prejudice to the defendant or to the conduct of the trial in any way. At any rate, the amendment was necessary only after the defendant filed her written statement inter alia challenging the family settlement-cum-partition deed dated 12th September, 2005. So, there is no delay as such. The trial Court rejected the application secondly on the ground that the suit was for specific performance of contract and the proposed defendants neither being party to the contract nor having any concern with the suit property, could not be impleaded. Even this ground has no merit. It was originally the plaintiff’s case that the suit property originally formed part of a larger property, being City Survey No. 4332; that there was a family settlement-cum-partition deed between the co-owners of this property which include the defendant herein and the proposed defendants; that the proposed defendants had already conveyed their shares in the larger property after the property was partitioned and mutated in their favour; and that it was only the defendant who along with three others (who are parties to the companion suit in which the companion writ petition is taken out), who refused to execute conveyance of their respective portions of the property. Considering the fact that the defendant in her written statement has challenged the family settlement-cum-partition deed, it is necessary for the plaintiff to join the other co-owners of the larger property as defendants. In the light of the challenge to the family settlement-cum-partition deed, on the basis of which alone the shares of all the co-owners were mutated and separately held and transferred by them to the plaintiff, the proposed defendants, who are the other co-owners, would be necessary parties to the suit. It could not be said in that case that they have no concern with the suit property in the facts of the case. It could not be said in that case that they have no concern with the suit property in the facts of the case. In any event, they are clearly proper parties to the suit, since their presence may be necessary for effective adjudication of the suit. 7. The plaintiff as dominus litus has the right to choose his opponents in the suit. Considering the facts and circumstances of the case, which are narrated above, the plaintiff has rightfully sought to implead the proposed defendants. The impugned rejection of the trial Court of that impleadment application is vitiated by a clear error of law and cannot, accordingly, be sustained. 8. In the premises, Rule is made absolute by quashing and setting aside the impugned order of the trial Court dated 22nd September, 2016 and allowing the plaintiff’s impleadment application (Exh.47). No order as to costs. Petition allowed.