Bombay High Court
Shrichand S/O Namamal Wadhwani And ... vs Satish S/O Somamal Lalwani And Anothers on 22 July, 2016
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
910-J-WP-5830-15 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5830 OF 2015
1. Shrichand s/o Namamal Wadhwani
aged about 52 years, Occ. Business,
r/o Plot No.372, Tulsi Nagar,
Near Shanti Nagar, Nagpur.
2. Rajkumar s/o Changomal Gurubakshani
Aged about 57 years, Occ. Business,
r/o F-1, Prabodhan Apartment,
Powergrid Chowk, Ring Road,
Jaripatka, Nagpur. ... Petitioners.
-vs-
1. Satish s/o Somamal Lalwani
aged about 47 years, Occ. Business,
r/o Block No.316, near Poonam Building,
Jaripatka, Nagpur.
2. Smt Padmabai w/o Kodumal Khubchandani
aged about 44 years, Occ. Service,
r/o near Sindhu Balodyan,
Jaripatka, Nagpur. ... Respondents.
Shri D. N. Dani, Advocate for petitioners.
Shri N. B. Bargat, Advocate for respondent No.1.
CORAM : A.S.CHANDURKAR, J.
DATE : July 22, 2016 Oral Judgment :
Rule. Heard finally with consent of learned counsel for the parties.
The petitioners who are the original defendants in Special Civil ::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 23:41:28 ::: 910-J-WP-5830-15 2/6 Suit No.665/2012 are aggrieved by the order passed by the trial Court below Exhibit-79 rejecting the application filed under provisions of Order I Rule 10(2) of the Code of Civil Procedure, 1908 for addition of the respondent No.2 as a party to the suit. Similarly, the order passed by the trial Court below Exhibit-80 rejecting the application for amendment of the written statement is also under challenge.
2. The respondent No.1 has filed suit for seeking declaration of his title along with cancellation of the sale deed dated 30/06/2010 that has been executed in favour of the petitioners. In the said suit it has been pleaded that the property in question devolved upon the respondent No.1 and his sister. The petitioners filed their written statement and took the stand that as the sale deed in question was not signed by the respondent No.2, the same was executed for 50% share of the respondent No.1.
The petitioners also filed a counter-claim seeking declaration that they were owners of 50% undivided share in the property in question and also sought possession of the suit property.
3. The petitioner moved an application below Exhibit-79 praying that the respondent No.2 who is the sister of respondent No.1 be added as a party to the suit. In the application it was stated that though no relief was being claimed against the respondent No.2, her presence was necessary to ::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 23:41:28 ::: 910-J-WP-5830-15 3/6 adjudicate the dispute. This application was rejected by the trial Court on the ground that no relief was sought against the proposed defendant.
The petitioners also sought permission to amend the written statement to enable the pleadings with regard to earlier partition dated 31/08/2000 to be brought on record. This application was also rejected by the trial Court on the ground that the same was moved after commencement of the trial.
4. Shri D. Dani, the learned counsel for the petitioners submitted that in the agreement of sale which was at Exhibit-70 it has been mentioned that on 31/08/2000 there was a partition between the respondent Nos.1 and respondent No.2 after which the sale deed of the property in question came to be executed. He submitted that though no relief was claimed against the respondent No.2, her presence was necessary to justify the fact that the property sold was from the share of the respondent No.1. As regards the amendment in the written statement is concerned, he submitted that the same was based on averments with regard to the earlier partition between the parties.
5. Shri N. B. Bargat, the learned counsel for the respondent No.1 supported the impugned orders. According to him, the applications in question were moved after commencement of the trial. As no relief was ::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 23:41:28 ::: 910-J-WP-5830-15 4/6 sought against the respondent No.2, the trial Court was justified in rejecting the application below Exhibit-79. Similarly, no reason was given for seeking the amendment at belated stage.
6. I have heard the respective counsel for the parties. In so far as addition of respondent No.2 who is the sister of respondent No.1 is concerned, the averments in the plaint indicate that it is the case of the respondent No.1 that the suit property devolved upon the respondent No.1 and his sister by survivorship. These pleadings are denied by the petitioners and the stand was taken that as the respondent No.2 did not sign the sale deed, only 50% share of respondent No.1 was sold. The document at Exhibit-70 also refers to partition dated 31/08/2000. Considering the provisions of Section 22(2) of the Specific Relief Act and the observations of the Honourable Supreme Court in (2000) 10 Supreme Court Cases 636 A. Abdul Rashid Khan (Dead) and ors. vs. P.A.K. A. Shahul Hamid and ors.
which decision was relied upon by the learned counsel for the petitioners, the presence of the respondent No.2 is found necessary in the civil suit. It being the specific case of the respondent No.1 that the suit property devolved on him and his sister and the subject matter being 50% of the aforesaid property, the presence of the respondent No.2 as a proper party is found necessary. The trial Court merely by observing that no relief was claimed in the suit, rejected the said application. Hence the order passed below Exhibit-
::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 23:41:28 ::: 910-J-WP-5830-15 5/679 is liable to be set aside.
7. In so far as the prayer for amendment is concerned, the application below Exhibit-80 has been moved after commencement of the trial. It has merely been stated that due to oversight the said averment could not be incorporated earlier. These averments are not sufficient to indicate exercise of due diligence by the party seeking amendment. Hence the order passed below Exhibit-80 does not deserve to be interfered with.
8. In view of aforesaid, the following order is passed :
(i) The order passed below Exhibit-79 dated 16/02/2015 is set aside.
Instead application below Exhibit-79 is allowed in terms of its prayers. The respondent No.2 be added as defendant No.3 in the suit.
(ii) The order passed below Exhibit-80 stands confirmed.
(iii) Rule is made partly absolute in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 23:41:28 ::: 910-J-WP-5830-15 6/6
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