M/S. Sunil Somvanshi and Company Vs Seema Suresh Sawalbhakta

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
WRIT PETITION NO.2305 OF 2008

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M/s Sunil Somvanshi & Company..Petitioner
V/s

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Smt. Seema Suresh Dawalbhakta..Respondent

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Mr. S.V. Pitre for the petitioner
Mr. Shriram S. Kulkarni for the respondent

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CORAM : A.A. SAYED, J.

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DATE : 4TH JULY, 2008

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P.C.

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1.Rule, rule made returnable forthwith and by
consent heard finally.

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2.This petition is directed against the order
dated 21st February, 2008 passed by Civil Judge, S.D.
Pune,wherebytheapplicationofthe

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petitioner-plaintiff to implead Gagan Co-operative
Housing Society as party-defendant to the suit came
to be rejected.

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3.The petitioner is a developer and the
respondent was the owner of the suit property and the
parties had entered into a development agreement
which came to be terminated by the respondent

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whereupon the petitioner filed the suit for
declaration and injunction. During the pendency of
the suit, the respondent executed a sale deed in
respect of the suit property with third party - M/s
Om Developers of which one Mr. Pawar is a partner.
A society came to be formed by M/s Om Developers in
the name as Gagan Co-operative Housing Society of
which the said Mr. Pawar is the Chairman. The
petitioner therefore made an application to implead
Gagan Co-operative Housing Society as party-defendant
to the suit which came to be rejected by the impugned
order - hence this petition.

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4.Relying upon the case of Dilip Bastimal Jain
V. Baban Bhanudas Kamble, reported in 2001 (3)
Mh.L.J. 730. the learned Counsel for the petitioner
submitted that the proposed defendant is required to
be impleaded as party-defendant, in view of the fact
that there is a subsequent transfer of the suit
property and even though there is no declaratory
relief claimed as against the society, it was
necessary to plead them as party-defendant. He
submitted that in absence of the proposed defendant
being on record, the decree if any being passed in

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favour of the petitioner would have no consequences
as decree would not be executable. The learned
Counsel, therefore, submitted that the Trial Court
had clearly erred in dismissing the application of
the petitioner. He submitted that this being a
subsequent event i.e. after filing of the suit, the
proposed defendant is a necessary and proper party to
the suit and by rejection of his application, grave
injustice has been caused to him and the impugned
order is passed without considering the relevant
provisions of law and there is an error apparent on
the face of the record.

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5.The learned Counsel for the respondent on the
other hand supported the impugned order and submitted
that the impugned order has been rightly passed and
that the 3rd party is neither necessary nor proper
party to the suit. Relying upon the decisions in the
case of Sarvinder Singh V. Dalip singh, reported in
(1996) 5 SCC 539 Sanjay Varma V. Manik Roy, reported
in (2006) 13 SCC 608 and Sunil Gupta V. Kiran
Girhotra, reported in (2007) 8 SCC 506, the learned
Counsel for the respondent submitted that though the
property has been transferred during the pendency of

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the suit the rights of the petitioner would not be

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affected in view of section 52 of Transfer of
Property Act and that the alienation was hit by
Doctrine of lis pendens.The learned Counsel
submitted that consequences of non impleadment of the
3rd party would not be fatal to the suit and that the
transfer would not in any manner affect the rights of
the petitioner under the decree which may be passed.
The learned Counsel therefore submitted that if the
property is transferred pendente lite without leave
of the Court, ordinarily such party cannot be
impleaded and is not necessary and proper party.

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6.Having heard the learned counsel for the
parties and on perusal of the impugned order and
material on record, I am of the view that the Trial
Court has clearly erred in dismissing the application
of the petitioner for impleading 3rd party to the
suit. Admittedly the property changed hands during
the pendency of the suit and the sale deed is
executed in favour of 3rd party which is Gagan
Co-operative HousingSocietyand therefore,
considering the order 1 Rule 10 CPC they would be
necessary and proper party in the suit.

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7.In the cases cited by the learned Counsel for
the respondent it is noted that those were the cases
wherein 3rd party themselves had applied to be
impleaded as party-defendant in the suit and the
Court had refused the application of 3rd party to
implead themselves in the suit interalia on the
ground that the decree, if any, would not be binding
on them. However, in the instant case, it is the
petitioner, who is plaintiff in the suit, seeks to
implead the transferee of the suit property, in as
much as transfer in the form of sale deed has
occurred during the pendency of the suit. The
petitioner is dominus litis and he would be within
his rights to seek impleadment of a 3rd party who has
purchased the suit property during the pendency of
the suit. Once sale deed has been entered into by
the respondent (orig.defendant) obviously she
ceases to have interest in the suit property.

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7.The Appellate Court has thus gravely erred in
rejecting the application of the petitioner to
implead 3rd partyas party-defendant.The
impleadment, in my opinion is necessary for an

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effectual and complete adjudication of the dispute
and for an executable decree and to avoid
multiplicity of proceedings. It is to be noted that
the application in the present case is at the
instance of the petitioner/ plaintiff and the
property has been dealt with during the pendency of
the suit. It appears that what has weighed with the
Trial Court is that there is an order of this Court
to dispose of the suit within 6 months out of which 4
months had already elapsed as is recorded in the
impugned order. The impugned order, in my view
cannot be sustained and unless interfered, grave
injustice would result.

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9.In the result, the impugned order is set aside
and the petition is allowed and rule made absolute.
The amendment to be carried out by the petitioner
within 3 weeks.

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10.At this stage, the learned Counsel for the
respondent seeks stay of this order for a period of 4
weeks. The learned Counsel for the petitioner has no
objection.The operation of this order is
accordingly stayed for a period of 4 weeks. The

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Trial Court shall not to proceed with the hearing of
suit for a period of 4 weeks.

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( A.A. SAYED, J.)

M/S. Sunil Somvanshi and Company v. Seema Suresh Sawalbhakta

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M/S. Sunil Somvanshi and Company v. Seema Suresh Sawalbhakta

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