Sakharam Eknath Chavan and Another v. Appasaheb Asaram Tandale and Others

Bombay HC28 Oct 2014WP/2930/2014

Case brief

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What is this about?

The High Court rejected a writ petition challenging the trial court's order impleading new plaintiffs who acquired suit property during pendency. The court held the order was valid under Order 1 Rule 10 CPC as it was sought at the initial stage of the suit.

What the court decided

AI extract

Sakharam Eknath Chavan and Another Vs Appasaheb Asaram… — Property and Title | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2930 OF 2014

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1.	Sakharam s/o Eknath Chavan, Age: 62 years, Occ: Agri.,
2.	Anjanabai s/o Sakharam Chavan, Age: 55 years, Occ: Agri.,
	Both R/o. Pimpri, Tq. Khultabad, Dist. Aurangabad. ...Petitioners
	versus
1.	Appasaheb s/o Asaram Tandale, Age: 55 years, Occ: Legal Practitioner & Agri.,
2.	Smt. Lata w/o Appasaheb Tandale, Age: 51 years, Occ: Service & Agri.,
	Both R/o. Garkheda, Aurangabad, Tq. & Dist. Aurangabad.
3.	Ratnamala w/o Ramesh Aherkar, Age: 52 years, Occ: Agri., R/o. Ratnamesh, House No.4-18-82, Mill Corner, Bhoiwada, Aurangabad. ...Respondents
	..... Mr. Sudhir K. Chavan, Advocate for petitioners. Mr. Avinash S. Deshpande. for respondent Nos. 1 to 3. .....
	CORAM : N.W. SAMBRE, J.

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DATED : 28TH OCTOBER, 2014

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PER COURT :

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. Present petitioners are the defendants in Regular Civil

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Suit No. 44 of 2013, wherein prayer for perpetual injunction is made

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by respondent No. 3 to present petition.

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The suit property consists of agricultural land admeasuring 6 acres out of Gat No. 25 situated at village Pimpri, Taluka Khultabad, District Aurangabad.

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During the pendency of the suit, respondent No. 3 has transferred the suit property to respondent Nos. 1 and 2, who have moved an application Exhibit-24 for impleading them as plaintiffs to the suit. The said application was objected by present petitionersdefendants on the ground that the suit for simplicitor injunction was not tenable, transfer of the suit property during pendency of the suit is not bonafide and property is sold during an order of status quo.

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The said application moved by present respondent Nos. 1 and 2 came to be granted by an order dated 04/03/2014 by learned Civil Judge, Junior Division, Khultabad. As such, present writ petition.

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Learned Counsel for petitioners-defendant Nos. 1 and 2 has sought to raise the question of law in support of his contention, which could be summarised as under.

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That the transfer of suit property by plaintiff i.e., respondent No. 3 to respondent Nos. 1 and 2 is not bonafide, as the same is during pendency of the status quo order and no permission from the Court was obtained before effecting such transfer. According to him, the suit for simplicitor injunction is not bonafide.

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In support of his contention that the suit for simplicitor injunction is not tenable and the transfer by the plaintiff during pendency of the suit is not bonafide, learned Counsel for the petitioners has sought to place reliance upon the judgment of the Apex Court in the matter of Bibi Zubaida Khatoon vs Nabi Hassan reported in A.I.R. 2004 SC 173(1) . According to him, Apex Court while dealing with the similar set of facts as are involved in the present petition has tested bonafides of the parties and has reached to the conclusion that subsequent purchaser during pendency of the suit may not be added as party if transaction is not bonafide. He has also placed reliance upon the judgment of Apex Court in the matter of

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Ramesh Hirachand Kundanmal vs Municipal Corporation of Greater Bombay reported in 1992(2) S.C.C. 524 so as to canvass the very object of Order 1 Rule 10 of Code of Civil Procedure. According to him, though the object of the said Rule is to avoid multiplicity of action, however the very conduct of the party must be taken into account.

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While countering the above referred submissions,

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learned Counsel for respondents submits that the order passed by learned trial Court, which is impugned in the present petition, is in tune with the scheme of Order 1 Rule 10 of Code of Civil Procedure. According to him, Apex Court has in categorical terms given finding in the matter of Amit Kumar Shaw and another vs. Farida Khatoon and another reported in A.I.R. 2005 SC 2209 that the applicability of doctrine lis pendens no way puts an embargo on the right of party to be impleaded in the suit, as object of Order 1 Rule 10 of Code of Civil Procedure is to avoid multiplicity. To canvass this contention further he has sought to place reliance upon the judgment of this Court in the matter of Yogesh s/o Balaji Misar vs Keshav Vistari Sontakke and others reported in 2014(5) Mh. L.J. 53.

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Having considered the rival contentions of the parties, it is required to be noted that there is earlier proceedings pending before learned Civil Court in Regular Civil Suit No. 39 of 2013, which is objected by present petitioners for setting aside title of respondents herein created by virtue of registered sale deed dated 20/02/2003. The above referred conduct of the petitioners-defendants in my opinion, justifies the fact that there exist title in favour of respondents in relation to the suit property and hence filing of the suit for

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simplicitor injunction was very much tenable.

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So far as the issue as regards transfer of property during pendency of the order of status quo is concerned, trial Court has taken into account the very effect of the same on the rights of the parties and at the initial stage of the suit when an application for impleading party plaintiff came to be moved, in my opinion, was rightly granted having regard to the object of Order 1 Rule 10 of Code of Civil Procedure.

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The judgment cited by learned Counsel for petitioners in support of his contention that this Court should also look into bonafides of the parties who have sought to be impleaded as party to the suit is concerned, in my opinion, the said judgment is based upon the stage at which party has moved in the suit for impleadment. The Supreme Court was dealing with the fact wherein trial Court has rejected the application for impleadment of party on the ground that such application was moved at belated stage. So far case as in hand is concerned, the suit is at initial stage, trial in the suit is yet to be begin. Learned trial Court, in my opinion, having regard to the scheme of Order 1 Rule 10 of Code of Civil Procedure, has rightly granted permission in favour of respondent Nos. 1 and 2 to be impleaded as plaintiffs. The said order, as such, does not suffer from

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any illegality or material irregularity. As such, writ petition fails, same stands rejected.

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[ N.W. SAMBRE, J. ]

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Tupe/28.10.14

Sakharam Eknath Chavan and Another v. Appasaheb Asaram Tandale and Others

Case brief

What is this about?

What the court decided

Sakharam Eknath Chavan and Another v. Appasaheb Asaram Tandale and Others

Case brief

What is this about?

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