Dismissed

Shamshuddin Hussain Shaikh v. Gp. Capt. Satish Hanumantrao Kenjale and Ors.

Bombay HC20 Dec 2023WP/1868/2023

Case brief

AI extract

What is this about?

High Court dismissed writ petitions challenging the trial court's order allowing amendment of plaint and addition of third party transferees as defendants in a civil suit for possession and declaration during pendency of the suit.

What did the court decide?

Writ petitions dismissed. Hearing of suit expedited. Observations shall not influence trial court on merits.

Shamshuddin Hussain Shaikh Vs Gp. Capt. Satish Hanumantrao… — Property and Title | Bombay HC (2023)

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1868 OF 2023 WITH

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WRIT PETITION NO.1869 OF 2023

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.12.20 17:51:50 +0530

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Shamshuddin Hussain Shaikh… Petitioner
V/s.
GP. Capt. Satish Hanumantrao
Kenjale & Ors.… Respondents

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Mr. Vikram V. Pai for the petitioner.
Mr. Chetan G. Patil for respondent Nos.1 to 3.

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CORAM :AMIT BORKAR, J.

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DATED:DECEMBER 20, 2023

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P.C.:

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1.The petitioner challenges order passed by the Trial Court
allowing application for amendment filed before commencement
of trial to incorporate pleadings regarding sell of suit property
during pendency of the suit.

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2.Respondent Nos.1 and 2/original plaintiffs filed Regular Civil
Suit No.1436 of 2020 seeking inter alia relief of delivery of
possession of the suit property. The plaintiff prayed for further
relief that agreement of assignment dated 27 January 2006
executed between father of the plaintiff and defendant No.1 be
declared as null and void.

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3.Defendant No.1 contested the suit by filing written
statement.

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4.During pendency of the suit, the defendant executed sale
deed of the suit property in favour of third parties. The petitioner,
therefore, filed two applications: one for amendment of plaing to
incorporate pleadings regarding sell of suit property in favour of
third party; and second, application under Order 1 Rule 10 of the
Code of Civil Procedure, 1908 to add third parties as defendants to
the suit.

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5.The Trial Court by the impugned order allowed both the
applications. Defendant No.1 has, therefore, filed present two writ
petitions challenging both the orders.

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6.According to the learned advocate for the petitioner,
amendment is not necessary to decide real controversy between
the parties and according to him third parties are not necessary
parties to the suit.

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7.It is not in dispute that the suit was filed on 14 December
2020. The sale deeds in question are registered on 10 November
2021. Therefore, it is clear that third party rights are created
during the pendency of the suit. The application for amendment is
filed before commencement of trial. Therefore, the application to
incorporate pleadings in relation to the sale of suit property in
favour of third party cannot be said to be not necessary to decide
real controversy between the parties. Therefore, the Trial Court
has rightly allowed the application for amendment.

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8. In so far as application under Order 1 Rule 10 passed by the

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Trial Court is concerned, the plaintiff being dominus litis, it is the
plaintiff’s discretion who he wants to make party. The proposed
defendants being transferees pendente lite can be allowed to be
added as party in a suit for possession and for declaration of
assignment deed as void. Therefore, the orders passed by the Trial
Court do not suffer from any legal infirmity.

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9.Both the writ petitions stand dismissed. No costs.

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10. Considering the facts of the case, hearing of the suit is
expedited.

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11. It is made clear that the observations made in the present
order shall not influence the Trial Court while deciding the suit on
merits.

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(AMIT BORKAR, J.)

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Shamshuddin Hussain Shaikh v. Gp. Capt. Satish Hanumantrao Kenjale and Ors.

Case brief

What is this about?

What did the court decide?

Shamshuddin Hussain Shaikh v. Gp. Capt. Satish Hanumantrao Kenjale and Ors.

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

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