Quashed

Swarupaben Madhavdas Saha and Ors. v. Subhash Shankar Patil and Anr.

Bombay HC13 Feb 2013WP/599/2013

Case brief

AI extract

What is this about?

A Special Leave Petition seeking to quash an impugned order allowing the addition of a third party (Dilip) to a civil suit filed for simpliciter injunction. The High Court held that mere knowledge of property matters does not justify addition as a defendant without a claim or the party appearing voluntarily.

What did the court decide?

The impugned order allowing addition of party Dilip was quashed and set aside; the application for addition was rejected.

Swarupaben Madhavdas Saha and Ors. Vs Subhash Shankar… — Property and Title | Bombay HC (2013)

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.599 OF 2013

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1. Swarupaben Madhavdas Shah,
Age 86 years, Occ.Household,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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2. Sau. Arunaben Rameshchandra Shah,
Age 63 years, Occ.Household,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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3. Sheela Gopal Daptari,
Age 55 years, Occ.Household,
R/o 104, "Lilikunj", N.P.Thakkar
Road, Vileparle (E), Mumbai-57.

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4.Bhupendra Mansukhlal Shah,
Age 61 years, Occ.Service,
R/o 1201-B, Panchsheel Heights,
Mahaveer Nagar, Kandiwal (W),
Mumbai-67.

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5. Nalin Mansukhlal Shah,
Age 53 years, Occ.Advocate,
R/o 3rd floor, "Pran-Ashis"
Building, Varsoba Beach Road,
Andheri (W), Mumbai-57.

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6. Devyani Arvind Desai,
Age 62 years, Occ.Servie,
R/o 1201-B, Panchsheel Heights,
Mahaveer Nagar, Kandiwali (W),
Mumbai-67
At present at America.

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7. Sandhyaben Mahendra Shah,
Age 58 years,Occ.Household,

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R/o Desaipura, Nandurbar,
Tq.and Dist.Nandurbar.

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8. Gunwantibai Mansukhlal Shah,
Age 80 years, Occ.Household,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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9. Rajendra Dhansukhlal Shah,
AGe 65 years, Occ.Agriculture,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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10. Gajendra Dhansukhlal Shah, Age 61 years, Occ.Agriculture, R/o Desaipura, Nandurbar, Tq. and Dist.Nandurbar.

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11. Alka Sureshchandra Shah,
Age 61 years, Occ.Agriculture,
R/o Desaipura, Nandurbar,
Tq. and Dist. Nandurbar.

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12. Sureshchandra Madhavdas Daptari,
Age 67 years, Occ.Medical
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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13. Gopal Madhavdas Daptari,
Age 61 years, Occ.Advocate,
R/o 104, "Lalikunj", N.P.Thakkar
Road, Vileparle (E), Mumbai-57.

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14. Govind Madhavdas Shah,
Age 62 years, Occ.Business,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.

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Power of Attorney Holder for
petitioner Nos.1 to 13
Shri Govind Madhavdas Shah,
Age 61 years, Occ.Business,
R/o Desaipura, Nandurbar,
Tq. and Dist.Nandurbar.... Petitioners.

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Versus

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1. Subhash Shankar Patil,
Age 70 years, Occ.Agriculture,
R/o Gujar Lane, Shahada,
Tq.Shahada, Dist.Nandurbar.

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2. Rakesh Subhash Patil,
Age 32 years, Occ.Agriculture,
R/o Gujar Lane, Shahada,
Tq.Shahada, Dist.Nandurbar.... Respondents.

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Mr.S.P.Shah, advocate for the Petitioners.
Mr.A.B.Kale, advocate for the Respondent Nos.1
and 2.

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...
CORAM : S.V.GANGAPURWALA,J.
 Date : 13.02.2013.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.

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3.The application filed by the defendants
for addition of party is allowed.

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4.Mr.Shah, learned counsel submits that
the suit is for simpliciter injunction. No
relief is claimed against the proposed defendant.

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The Court below exceeded its jurisdiction in
allowing the said application. According to the
learned counsel, the only reason for which the
party is added is that it would be necessary to
clarify the situation and dimensions of the
property. According to the learned counsel, the
application was not within the contour of Order
I Rule 2 of the C.P.C.

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4.Mr.Kale, learned counsel for the
Respondents submits that the Court has exercised
its discretion in adding said Dilip as a party.
The defendant No.1 has executed sale deed in
favour of Dilip. Thereafter, correction deed was
executed. It is said Dilip who would be in a
better position to elucidate the matter in
controversy. He was a partner of the firm. The
plaintiffs claim that there is division amongst
them. In view of that fact also said Dilip is a
necessary party. In the plaint also no proper
description is given. The proposed party on that
count also is necessary to effectively adjudicate
the dispute between the parties. According to
learned counsel, Order 1 Rule 10 of the C.P.C.

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empowers the Court to add any party, whose
presence before the Court is necessary to
effectively and completely adjudicate upon and
settle all the questions involved in the suit.
The suit involves the question about dimensions,
area, the boundaries of the property and it is
said Dilip who would be the best person to throw
light on the said controversy. According to the
learned counsel, the trial Court has considered
all these aspects and has rightly allowed the
application.

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5.With the assistance of the learned
counsel, I have gone through the order. The suit
is for simpliciter injunction. No relief of
declaration with regard to any property or
document is claimed.

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6.The plaintiff is the dominus litis of
his case. No relief is claimed against the said
added party. If certain clarifications are
required, the said Dilip can be presented as a
witness. There is no impediment for any party to
examine him. The plaintiffs as well as

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defendants have not claimed any relief as against
said Dilip. Only because he has knowledge about
the transaction and about the nature of the
property will not be sufficient to add him as a
defendant.

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7.It is not a case that said Dilip has
come forward to file an application to be
impleaded as a party. It would have been another
thing, if said Dilip would have applied for
addition of a party, alleging against the
plaintiffs and claiming his interest in the suit
property but that is not the case.

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8.In light of the above, the impugned
order is quashed and set aside and the
application Exh.41 is rejected.

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9.Rule accordingly made absolute. No

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costs.

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(S.V.GANGAPURWALA,J.)

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asp/office/wp59913

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Swarupaben Madhavdas Saha and Ors. v. Subhash Shankar Patil and Anr.

Case brief

What is this about?

What did the court decide?

Swarupaben Madhavdas Saha and Ors. v. Subhash Shankar Patil and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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