Allowed¶57

Manisha Dadasaheb Kadam v. Bhagwan Babarao Shinde and Others

Impleadment of parties – Order I Rule 10 CPC

Bombay HC26 Feb 2025WP/1901/2024

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Case brief

AI extract

What is this about?

Dominus litis; necessary party; impleadment under Order I Rule 10 CPC; bare/simpliciter injunction suit; no declaration sought against proposed added defendant; gift deed validity pending in earlier suit RCS No. 45/2017 (res sub judice); application by nephew as next friend of father; Ashok 2022 SCC OnLine Bom 3670 distinguished; Trial Court order mechanically passed and unsustainable; Bombay High Court, Aurangabad Bench, R. M. Joshi, J; writ petition allowed; Exh. 40 dismissed; Writ Petition No. 1901 of 2024; Writ Petition No. 590/2022 confirmed rejection of Exh. 5.

What did the court decide?

Writ Petition allowed; application Exh. 40 filed in RCS No. 164/2021 (impleadment of Respondent No. 4) stands dismissed. ¶57

Manisha Dadasaheb Kadam Vs Bhagwan Babarao Shinde and Others — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ Petition allowed; application Exh. 40 filed in RCS No. 164/2021 (impleadment of Respondent No. 4) stands dismissed.

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Issue for consideration

Whether Respondent No. 4 (father of the Petitioner-Plaintiff) was rightly added as a defendant to the injunction suit RCS No. 164/2021 under Order I, Rule 10 CPC, when the Petitioner seeks only injunction against Defendant Nos. 1 to 3, seeks no declaration (the validity of the gift deed being already the subject matter of the earlier suit RCS No. 45/2017), and pleads that Respondent No. 4 is not a necessary party.

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Court's answer

The Coordinate Bench decision in Ashok (2022 SCC OnLine Bom 3670) does not assist the added respondent: unlike that case (where a plaintiff with knowledge deliberately avoided impleading the trust/trustees claiming interest), in the present case an earlier suit, RCS No. 45/2017, challenging the validity of the gift deed is already pending and is first in time.

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Ratio / Principle

Since RCS No. 45/2017 (challenging the gift deed's validity) is pending, the Court in the Petitioner's subsequent suit cannot enter upon that issue or record any findings thereon.

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Key takeaways

The principle of dominus litis applies: the Plaintiff cannot be compelled to join someone as defendant where no relief is sought against that person and his presence is not necessary for the effective decision of the suit.ratio¶52
The suit is one for bare injunction with specific averments that Defendant Nos. 1 to 3 obstruct the Plaintiff's peaceful possession, and no declaration other than the injunction is sought; consequently, the grievance raised on behalf of Respondent No. 4 lacks substance.ratio¶52

Detailed headnote1 paragraphs

Impleadment of parties — Order I Rule 10 CPC — dominus litis. Plaintiff (granddaughter/daughter through registered gift deed) sued Defendants 1–3 for bare injunction alleging obstruction of her possession (RCS No. 164/2021). Respondent No. 2, nephew of Respondent No. 4 (the Plaintiff's father and donor under the gift deed), applied as next friend to add Respondent No. 4 as defendant; the Trial Court allowed the application by order below Exh. 40 dated 02.01.2024. Allowing the writ petition, the High Court (R. M. Joshi, J) held: (i) the coordinate-bench ruling in Ashok, 2022 SCC OnLine Bom 3670 (where a plaintiff knowingly skirted impleading a trust claiming interest) was distinguishable, because here the validity of the very gift deed was already in issue in the earlier, pending suit RCS No. 45/2017 (its Exh. 5 rejection having been confirmed in W.P. No. 590/2022); (ii) the subsequent suit court could not adjudicate that pending issue; (iii) since no declaration or relief was sought against Respondent No. 4 and his presence was not shown necessary for effective adjudication, dominus litis entitled the Plaintiff to refuse his impleadment; (iv) the Trial Court acted mechanically, ignoring these material facts. Petition allowed; Exh. 40 dismissed.

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2025:BHC-AUG:5869

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916-WP-1901-2024.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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WRIT PETITION NO. 1901 OF 2024

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Manisha Dadasaheb Kadam

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VERSUS

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Bhagwan Babarao Shinde And Others

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*******

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• Mr. G. A. Gadhe, Advocate for the Petitioner • Mr. N. K. Chaudhari, Advocate for the Respondent Nos. 1, 2 and 4

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CORAM:R. M. JOSHI, J
DATE:FEBRUARY 26, 2025

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PER COURT :

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1.This Petition takes exception to the order
passed below Exh. 40 dated 02.01.2024 in RCS No.
164/2021 whereby the application filed by the
Respondent No. 4 under Order I, Rule 10 of the Code of
Civil Procedure came to be allowed.

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2.The facts which led to the filing of this
Petition can be narrated in brief as under:

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The present Petitioner is Plaintiff who filed

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suit being RCS No. 164/2021 against Respondent Nos. 1

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to 3 with averment that they are obstructing the
possession of Plaintiff and injunction is sought
against them. Respondent No. 4 is father of the

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Umesh

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Plaintiff. Plaintiff claims that he executed a
registered gift deed in her favour in respect of the
suit property. Respondent No. 2 is a nephew of the
Respondent No. 4 and he filed application Exh. 40 to
join Respondent No. 4 as Defendant to the suit through
Respondent No. 2 as a next friend. The Petition further
reveals that Respondent No. 2 filed suit being RCS No.
45/2017 as a next friend of Respondent No. 4 i.e.,
father of the Petitioner herein for seeking declaration
that gift deed executed in her favour to be invalid. In
the said proceeding, Respondent No. 2 filed Exh. 5
application which came to be rejected and the said
order was confirmed by this Court in Writ Petition No.
590/2022. Petitioner has grievance that the Respondent

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No. 4 is not necessary party as there is only
injunction is sought against Defendant Nos. 1 to 3.

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3.Learned Counsel for the Petitioner submits

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that the issue of the validity of the gift deed
executed by Respondent No. 4 in favour of Petitioner is
subject matter of RCS No. 45/2017 and that no
declaration is sought by the Petitioner in RCS No.
164/2021. He drew attention of the Court to the

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Umesh

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pleadings in the plaint to argue that there is specific
allegation against the Defendants causing obstruction
to the peaceful possession of the Plaintiff over the
suit property and that there is no allegation against
added Defendant.

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4.None appeared for Respondent No. 3 though
served. This indicates that this Respondent has no
inclination to oppose the Petition.

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5.Learned Counsel for the Respondent Nos. 1, 2

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and 4 opposes the said contention by raising grievance
that if any declaration is given in RCS No. 164/2021 in
respect of validity of the gift deed, such order would
directly affect the interest of Respondent No. 4. It is
his submission by relying upon the judgment of
Coordinate Bench of this Court in case of Ashok vs.
State of Maharashtra and Others, 2022 SCC OnLine Bom

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3670, that by wise pleadings it cannot be permitted to
the plaintiff to file suit and seek relief which is
against the person, without joining him as Defendant.

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6.Perusal of the judgment in case of Ashok

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(supra) shows that it was a case wherein the suit for

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Umesh

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injunction is filed in respect of the property
belonging to the Trust without making Trust and
trustees as parties. In such circumstances, this Court
has made observations in paragraph nos. 13 to 15, which
reads thus:

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13. From the averments of the plaint, it is
clear that the plaintiff had full knowledge
of registration of the trust and also of
the fact that the trust and its trustees
were claiming right, title and interest in
the property and were filing applications
for taking over possession of the same.
Despite acquisition of this knowledge, he
appears to have deliberately arrayed only
revenue and police officials as defendants
to the suit. Admittedly, the original eight
defendants (revenue and police officials)
are not claiming any right, title or
interest in the suit property, nor are
seeking to dispossess plaintiff in
pursuance of any right claimed by the
Government in the suit property. They are
concerned either with maintenance of
revenue entries or may assist in execution
of lawful orders passed by the Courts and
the authorities.

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14. The question that arises is why the
plaintiff chose to file suit only against
the Government officials despite having
full knowledge of rights being claimed by
the trust and the trustees in the suit
properties? The action appears to be
deliberate one so as to secure a decree of
perpetual injunction behind the back of the

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Umesh

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persons/trust claiming interest in the
property. The suit appears to have been
cleverly drafted by intentionally avoiding
to implead the trust or its trustees. The
Revenue and Police officials may not
seriously contest plaintiff’s suit for lack
of any lis between them and plaintiff.
Plaintiff cannot be permitted to seek
decree against persons not claiming any
rights in the suit property and then
possibly use it to protect his possession
by relying upon the same before the revenue
and police officials. The trial court has
filled in the gap by directing addition of
Respondent Nos. 9 and 10 after being
satisfied that their present is necessary
for deciding the issues effectively.

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15. No doubt, the suit is for injunction
simplicitor and the order of injunction
would not be binding on respondent Nos. 9
and 10, if they were not to be added as
party defendants. Mr. Gangakhedkar has
strenuously submitted that the decree
passed in the suit would not be binding on
respondent Nos. 9 and 10, who can have
their own remedies open against the
plaintiff for claiming their own right,
title or interest. In my opinion, this
course of action would only result in
multiplicity of proceedings. The course of
action suggested by Mr. Gangakhekar would
result in trial of plaintiff’s suit in
absence of Respondent Nos. 9 and 10 and
then filing of another suit by Respondent
Nos. 9 and 10 to claim their own rights.
The Trial Court, in my opinion, has
correctly avoided this situation by adding
Respondent Nos. 9 and 10 to plaintiff’s

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Umesh

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suit so that the competing claims of both
the sides would be decided in one
proceedings.

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7.In contrast, in the instant case, there is a

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suit filed being RCS No. 45/2017 which is first in time
seeking declaration with regard to the validity of the
gift deed executed by the Petitioner’s father in her
favour. Needless to say that since the said suit is
pending, even otherwise it is not open for the Court in
the subsequent suit filed by the Petitioner to go into
the said issue and record any findings thereon.

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8.Perusal of the record indicates that this is a
suit for simplicitor injunction with specific averment
that the Defendants are causing obstruction to the
peaceful possession of the Plaintiff over the suit
property. As there is no other declaration sought,
there is no substance in the grievance sought to be
made out by the Counsel for Respondent No. 4. The
principle of dominus litus would certainly apply to the
present case and the Plaintiff cannot be compelled to
join someone as Defendant, if no any relief is sought
or otherwise the presence of such person is not

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Umesh

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necessary for the effective decision of the suit. In
the application filed before the Trial Court, it is not
the case of the Respondent No. 2 in the capacity of
next friend of Respondent No. 4 that his presence is
necessary for the proper and effective decision of the
suit.

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9.Having regard to these facts, this Court is of
the view that the Trial Court has ignored material
factual aspect in the matter and has mechanically
allowed the application. This has led to passing of
order unsustainable in law. Hence, Petition deserves to
be allowed and the same is accordingly allowed.
Application Exh. 40 filed in RCS No. 164/2021 stands
dismissed.

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Umesh

Manisha Dadasaheb Kadam v. Bhagwan Babarao Shinde and Others

Case brief

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Manisha Dadasaheb Kadam v. Bhagwan Babarao Shinde and Others

Case brief

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