EDC Limited vs Fr. Mathias B. D''Mello and Others

S.C. Dharmadhikari, J.—Heard learned Counsel appearing for the parties. The petitioner is the original defendant no. 1 in Special Civil Suit No. 104/2005/A. The said suit is filed by one Mrs. Zena Barbara D''Mello and the claim in the said suit is that said Mrs. Zena Barbara D''Mello is entitled to a permanent order and injunction restraining defendant no. 1 from taking over possession of factory no. II and III in whatsoever manner.

The plaintiff has approached the Court below for the above relief on the basis of her averments which are that the defendant no. 3 has failed to repay the loan amount and the defendant no. 1 has issued letter dated 15/12/2004 threatening to initiate legal proceedings. In response to that letter, defendant no. 3 has stated that he is ready and willing to pay Rs. 19,98,945/- as part of one time settlement. The earlier loans are also referred to. She states that the plot in which the factory no. II is situated, lies in the property of which she is the co-owner. She claims right to the property regarding which the above reliefs are claimed. The plaintiff never mortgaged her share in the property as a security of the loan, in her capacity as co-owner of the said property, is the plea raised by her.

During the pendency of that suit, an application is filed by the applicant under Order 1, Rule 10 of CPC and he states that the suit properties are ancestral properties, originally belonging to one Maria Francisca Lobo and her husband Peter Felicio D''Mello, who passed away intestate on 25/09/1984 at Mumbai. The applicant claimed to be the child of the deceased Peter and the Widow Maria. He has filed the application to implead himself as a party defendant to the suit by contending that even his right is adversely affected as far as the suit properties are concerned. In such circumstances and when he is jointly entitled to the estate of the deceased that he is a necessary party and therefore be impleaded as such.

The original plaintiff gave her no objection to the impleadment so also other defendants to the suit. Defendant no. 1/present petitioner contested the application by filing a detailed reply alleging collusion in not only filing of the suit but filing of the application as well. These are delaying tactics according to the petitioner/Corporation and they ought not to have been encouraged. The presence of the applicant is neither necessary nor proper and the suit can proceed in his absence.

The Trial Court has allowed the said application and that is how the original defendant no. 1 is before me.

Having perused the impugned order and the relevant statutory provisions, in my view, it cannot be said that Trial Court has exercised discretion erroneously or illegally so as to warrant interference in writ jurisdiction. This is not a case where discretion has been exercised capriciously or arbitrarily and without any adherence to settled legal principle. Once the Trial Court was of the view that the applicant is also claiming to be entitled to the same property which is subject matter of the suit together with the original plaintiff, so also defendants no. 2 to 4, then, his impleadment is necessary so that the controversy in the suit can be completely and effectually settled. I see no reason to interfere with such a conclusion in the Impugned order. The Writ Petition is therefore dismissed. No costs. There is no substance in the apprehension that the pendency of the suit would be utilized to deny and defeat the claim of the petitioner Corporation. The Corporation has ample powers in law to recover its dues. However, the Trial Court to endeavour and dispose of the subject Special Civil Suit as expeditiously as possible and within a period of six months from today. All contentions on merits are kept open.