Pradnya Pramod Latkar @ Shubhada Bhalchandra Joshi vs Mahesh Bhalchandra Joshi & Ors.

Rule. Rule made returnable forthwith. With consent of parties, matter is taken up for final hearing at admission stage.

The petitioner impugns order dated 06.12.2021 passed by Civil Judge Junior Division, Satara below Exhibits-79 and 106, by which applications filed by petitioner/plaintiff seeking amendment in plaint and impleadment of parties has been rejected.

The petitioner/plaintiff filed Special Civil Suit No.136/2016 before Civil Judge Junior Division at Satara seeking decree of partition and separate possession and perpetual injunction in respect of suit properties. According to plaintiff, parties are brothers and sisters. The suit property was originally owned by their father. The plaintiff, defendants and their mother are three shareholders of property left behind by their father. The plaintiff had filed Special Civil Suit No.63/2005 for partition and separate possession, which has been disposed of in terms of compromise decree, in which 1/3^rd share of plaintiff has been accepted. On 25.01.2011, plaintiff’s mother expired and plaintiff is entitled to claim her equal right in share of her mother. It is contention of plaintiff that defendants had agreed to pay amount of Rs.2,37,600/- towards her share in 1/3^rd share of her mother. However, defendant no.1 transferred suit property to defendant no.2 under registered sale deed dated 12.07.2016, which is not binding on her right. During pendency of suit, plaintiff had filed application below Exhibit-5, which was rejected by Trial Court.

The plaintiff filed Appeal before District Court, in which injunction was granted against defendant nos.1 and 2, thereby restraining them from changing nature of suit property or carrying out construction or creating any third party right. The defendant no.2 challenged order of District Judge in Writ Petition No.7189/2018, in which this Court pleased to set aside order of Appellate Court and directed that one flat no.7-B consisting of two bedroom hall kitchen in building under construction on suit plot shall be kept vacant during pendency of suit and accordingly, undertaking was taken from defendant no.2.

In aforesaid background, plaintiff filed applications below Exhibits-79 and 106 under Order 1 Rule 10(2) r/w Order VI Rule 17 of Code of Civil Procedure seeking impleadment of purchasers of flats as parties in suit and incorporate relevant pleading. The Trial Court by common order dated 06.12.2021 rejected applications. Hence, present Writ Petition.

Mr. Rajaram Bansode, learned Advocate appearing for petitioner would submit that plaintiff has instituted substantive suit claiming her 1/6^th share in suit property. The defendant no.1 alienated property in favour of defendant no.2, who raised construction of building consisting of several apartments, which are sold to various persons. Now purchasers of flats are in possession of property. In case plaintiff succeeds in suit, execution of decree cannot be given effect in absence of purchasers being party to suit. He would, therefore, urge that Trial Court failed to exercise jurisdiction vested under Order 1 Rule 10 (2) r/w Order VI Rule 17 of Code of Civil Procedure.

Per contra, Mr. Prasad Dhakephalkar, learned Senior Advocate appearing for respondents would submit that plaintiff is claiming 1/6^th share in suit property, although in view of compromise decree passed in Special Civil Suit No.63/2005 she has already relinquished her right in suit property. Further, in view of order passed by this Court in Writ Petition No.7189/2018, alongwith companion matters, one flat is kept vacant in building, which will take care of plaintiff’s right, if any, in suit property. The innocent purchasers of flats need not be dragged to litigation. He would, therefore, urge that Trial Court has rightly rejected application for impleadment.

Having considered submissions advanced by learned Advocates appearing for respective parties and reasons as recorded in impugned order, it can be observed that proposed amendment seeks impleadment of purchasers of flats in building constructed over suit plot. The plaintiff had sought temporary injunction in suit. Ultimately, her application came to be rejected by this Court and petitioner has already given undertaking to withhold one flat specified in order, which shall take care of plaintiff’s claim in suit property. It appears that, plaintiff could not establish her, prima facie, case of having right in suit property.

Apparently, there are previous compromise decrees, whereby plaintiff had relinquished her right in suit property. Be that as it may, Trial Court after considering parameters of jurisdiction under Order I Rule 10(2) r/w Order VI Rule 17 of Code of Civil Procedure refused to entertain prayers for addition of parties. As rightly pointed out by Mr. Dhakephalkar, learned Senior Advocate, proposed defendants are purchasers of flats. The right of plaintiff is already protected by keeping one flat vacant in building. The plaintiff is claiming 1/6^th share in suit property. However, as per previous compromise decree, she has relinquished her share, may be on assurance of payment of certain amount. In this background, addition of parties at the behest of plaintiff would not be necessary. The right of plaintiff can be decided even in absence of purchasers of flats. In case purchasers themselves make application for addition of party, it can be considered on its own merits. However, for reasons as recorded by Trial Court, their impleadment in suit would not be necessary for adjudication of dispute between parties.

In that view of matter, this Court do not find any reason to interfere in exercise of Writ jurisdiction under Article 227 of Constitution of India. Hence, Writ Petition stands dismissed.

Rule stands discharged.