Manohar Bhimroa Bamane vs Laxman Omani Bamane and Others

R.S. Chauhan, J.—The petitioner, Mr. Manohar Bhimroa Bamane is aggrieved by the order dated 19/3/2015 passed by the V Additional Civil Judge & JMFC, Belagavi, whereby the learned Additional Civil Judge has dismissed the application filed by the petitioner for being impleading as plaintiff No. 2 in the civil suit filed by his father, the plaintiff No. 1. According to the petitioner, his father, Bhimroa Bamane had filed a civil suit for permanent injunction against the respondent Nos. 1 to 4 as at the time of filing of suit, his father was the owner of the suit property. According to his father, the respondent Nos. 1 to 4 have no right or title over the suit property. Since respondent Nos. 1 to 4 were obstructing his peaceful possession and enjoyment of the property, plaintiff No. 1 filed a civil suit for permanent injunction.

During the course of the proceedings, the petitioner has claimed that his father, who was 80 years old and who was residing with him, had transferred the suit property to him. Due to the transfer, the suit property was mutated in his name in the revenue records. Moreover, during the pendency of the said civil suit, the respondent Nos. 1 to 4 also filed a civil suit for permanent injunction against the petitioner and his father. Since the dispute in both the suits are between the same parties, they have been clubbed together by the trial Court. Therefore, the petitioner had filed an application for being impleaded as plaintiff No. 2. However, the said application has been dismissed by order dated 19/2/2015. Hence, the present petition before this Court.

Mr. Vithal S. Teli, the learned counsel for the petitioner, submits that the observation made by the learned trial Court that "although the petitioner had submitted an impleading application, the said application was not accompanied along with an affidavit", is patently a wrong observation. Application for impleading was not only accompanied by an affidavit, but the respondent Nos. 1 to 4 had also replied to the affidavit, while raising their objections to the application filed by the petitioner. Thus, the impugned order clearly suffers from non-application of mind. Secondly, undoubtedly according to both the parties, they have filed a civil suit for permanent injunction against each other. In the civil suit filed by the respondent against the petitioner''s father, the petitioner is also a defendant in the said suit. In the present civil suit, the petitioner has filed this application for implementing, inter alia on the ground, that his father is no longer the owner of the suit property, but it is the petitioner who has become the owner of the suit property. Since, both the civil suits have been clubbed together by the trial Court, the petitioner is now a necessary party to the suit filed by his father against the respondents. Therefore, if any judgment and decree is passed against the interest of the plaintiff No. 1, the consequence would be that it would adversely effect the interest of the petitioner, for plaintiff No. 1 is no longer the owner of the suit property. Therefore, ample opportunity should be given to the petitioner to defend his interest in the suit property against the unnecessary and illegal interference allegedly made by the respondent Nos. 1 to 4, otherwise it would adversely effect his right. Thus, it was imperative to allow the application for implement.

On the other hand, Mrs. Hemalekha R. Kulkarni, learned counsel for respondent, has pleaded that since the dispute is only between the plaintiff No. 1, who happens to be petitioner''s father and respondents, since there is no evidence to show as to how the land was transferred by the plaintiff No. 1 to the petitioner, since there is merely a mutation entry in favour of the petitioner, he is neither a necessary nor a proper party. Thus, she has supported the impugned order.

Heard the learned counsel for the parties and perused the impugned order as well as the documents submitted along with the petition.

A bare perusal of the application filed under Order 1 Rule 10 CPC clearly shows that the application was, indeed, accompanied by an affidavit filed by the petitioner. Moreover in the objection filed by respondent Nos. 1 to 4, they had clearly eluded to the paragraphs of the affidavit filed by the petitioner. Therefore, the observation made by the learned Civil Judge that "the application is not accompanied with an affidavit" is contrary to the available record. Hence, the impugned order clearly suffers from non-application of mind. Thus it is unsustainable.

Since the petitioner pleads that during the course of the proceedings the suit property has been transferred by his father who happens to be an old person and happens to be living with the petitioner, since there is a revenue entry, which clearly shows that he is in possession of the suit property, ultimately if a suit were dismissed, the interest of the petitioner would be adversely affected. It is, indeed, trite to state that an order that adversely affects the interest of the person cannot be passed unless an opportunity of hearing is given to the said person. Thus, before the Civil suit can be decided, the petitioner has to be given an opportunity of hearing. Moreover, since interest of the petitioner is now under question, obviously he is a necessary and proper party to the suit filed by his father.

Most importantly, by adding the petitioner as plaintiff No. 2, the interest of respondent Nos. 1 to 4 as a defendants in the case, is not adversely affected. The issue would be "whether the plaintiffs are entitled to a permanent injunction in their favour against the respondents was not?" Since both the suits filed by the parties against each other are suits for permanent injunction, since the evidence is common in both the suits since both the suits have been clubbed together and are being heard, and will be decided by the same Court, it is imperative to implead the petitioner as plaintiff No. 2.

For the reasons stated above, this Court allows this petition and sets aside the order dated 19/3/2015. The learned trial Court is directed to implead the petitioner as plaintiff No. 2 in suit No. 224/2011.