IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4878 OF 2025

1. Subhangi Subhash Palshetkar,

Age: 60 Occupation Housewife,

having address at 305, Pawan

apartment, Shukla compound, Shiv

Vallabh Road, Ashokvan, Dahisar (East)

Mumbai – 400 068.

2. Abhishek Subhash Palshetkar

Age – 37 years., Occupation

3. Aniket Subhash Palshetkar

Age – 35 years, Occupation ...Petitioners

Versus

1. M/s. Hariom Builders,

A registered partnership �rm,

having its of�ce at Shop No. 2,

Shiv Darshan, R.N.P. Park, Near Jesal

Park, Bhayandar (East), Thane 401 105

2. M/s. Om Shivam Developers

through its partner Mr. Kushal Raj

Parmar having address at

Raj Mandir Complex, Near Post Complex

Mira Road (East), Tal & Dist. Thane.

3. The Mira Bhayandar Municipal Corp.,

a Body Corporate, having its of�ce at

Corporation Building, Bhayandar (West),

Tal. & Dist. Thane

4. Shri. V�ay Vasantrao Deshmukh,

Adult, Occ: Business, Shop No. 9,

Giriraj Tower, Opp. New Petrol Pump,

Mira Road (East) 401 107,

Tal. & Dist. Thane.

SAINATH, PA 1/21

5. Laxmibai Govind Patil

Age 95 years, Residing at Sector No. 6,

2

nd

Floor, A wing, Yashwant Arcade

Building, Flat No. 203, Opp. Teen Taki,

Koperkhairne, Navi Mumbai – 400 709.

6. Smt. Yashwanti Prabhakar Patil

Age 61 years, Indian inhabitant

Residing at Ground Floor, Wadilanchi

Savli, Bhivandi Road, Balkum No. 1,

Thane 400 608.

7. Smt. Kumud Kamlakar Patil

Adult, Indian inhabitant Residing at

Kisan Niwas, Tale Pakhadi, Moreshwar

Patil Road, Eksar Village, Borivali (West)

Mumbai 400 092.

8. Smt. Dhanwati Ramesh Patil

Age 58 years, Indian inhabitant,

Residing at Matushree House No. 143,

Sector 19, Mukam Post – Koperkhairane,

Navi Mumbai 400 709

9. Savitribai Manik Mhatre

Age 63 years, Residing at Kandar Pada,

Dahisar (West), Mumbai

10. Mr. Rajesh Morarji Chehda

11. Mr. Rajkumar Omprakash Sharma

through their Power of Attorney

Mr. Madhukar Dattaram Haiyan

Residing at:- B-403, Jay Ashtvinayak

Society, Sai Baba nagar, Mira Road East,

Dist. Thane.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

…Respondents

_ _ _ _ _ _ _ _ _

Mr. Rohaan Cama a/w Mr. Bharat Manghani, Ms. Drushti

Gala, for the Petitioners.

Ms. Aarti H Bhandari, a/w Fehmeeda Khan, for Respondent

Nos. 10 and 11.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

SAINATH, PA 2/21

CORAM :N. J. JAMADAR, J.

RESERVED ON :23

th

MARCH 2026

PRONOUNCED ON :07

th

APRIL 2026

JUDGMENT:

1.Rule. Rule made returnable forthwith, and, with the

consent of learned Counsel for the parties, heard �nally.

2.By this petition under Article 227 of the Constitution

of India, the petitioners take exception to an order dated

22

nd

July, 2024, whereby the learned Civil Judge allowed

an application for impleadment of the Respondent Nos. 10

and 11 as party defendants to the suit and another order

dated 22

nd

January, 2025, whereby an application

preferred by the petitioners/plaintiffs to review the �rst

order, came to be rejected.

3.For the sake of convenience and clarity, the parties

are hereinafter referred to in the capacity in which they are

arrayed before the trial Court.

4.Shorn of unnecessary details, the background facts

leading to this petition can be stated as under:-

SAINATH, PA 3/21

4.1The plaintiffs claimed to be the owners of property

being Survey No. 252 (old) i.e. Survey No. 43 (new), Hissa

No. 2, admeasuring 7360 sq. mtrs., situated at Navghar,

Thane (‘the suit property’).

4.2Under an agreement for sale dated 24

th

October,

2007, the Plaintiff Nos. 2 to 7 had agreed to sale, transfer

and assign the suit property in favour of Plaintiff No. 8.

Since Plaintiff No. 8 expressed his inability to conclude the

transaction and agreed to give consent for the transfer of

the suit property to another purchaser, the Plaintiff Nos. 2

to 7 transferred the suit property in favour of the Plaintiff

No. 1. Under a deed of conveyance dated 28

th

November,

2008, Plaintiff No. 8 executed the said conveyance as a

consenting party.

4.3The plaintiffs claimed the Defendant Nos. 1 and 2

instituted RCS No. 32/2009 and 423/2009 falsely claiming

that, the Plaintiff Nos. 2 to 7 had transferred the suit

property in favour of the Defendant Nos. 1 and 2 under the

respective instruments. The Plaintiff Nos. 2 to 7 had never

executed any instrument in favour of the Defendant No. 1

or Defendant No. 2, and the later were laying claim over

SAINATH, PA 4/21

the suit property on the basis of false and forged

documents.

4.4The plaintiff instituted the Special Civil Suit No.

615/2010 for a declaration that the conveyance dated 28

th

November, 2008 in favour of the Plaintiff No. 1 was legal,

valid and subsisting and, conversely, the purported deeds

of conveyance dated 20

th

October, 2007 and 14

th

November,

2008 and the allied instruments in favour of the Defendant

Nos. 1 and 2 were illegal, bad in law and not binding upon

the plaintiffs and the same stood cancelled.

4.5In the said suit, the Respondent Nos. 10 and 11 �led

an application under Order I Rule 10 of the Code of Civil

Procedure, 1908 seeking their impleadment as party

defendants to the said suit. It was

inter alia averred by the

Respondent Nos. 10 and 11 that, the Plaintiff Nos. 2 to 7

had executed a deed of conveyance dated 28

th

November,

2008 in favour of Subhash Palshetkar – deceased Plaintiff

No. 1. On the basis of the said instrument, the deceased

Plaintiff No. 1 had assigned FSI admeasuring 70,000 sq.

feet (built up) including TDR to be consumed on the suit

property at or for the lumpsum price at Rs. 864/- per sq.

SAINATH, PA 5/21

feet to the Respondent Nos. 10 and 11, under an agreement

dated 04

th

December, 2009. The deceased Plaintiff No. 1

had acknowledged the receipt of consideration of

Rs.3,02,40,000/- (Rupees Three Crores Two Lakhs Forty

Thousand) by way of cheques and in cash thereunder, and

had also executed a Power of Attorney in favour of th e

Respondent Nos. 10 and 11.

4.6The Respondent Nos. 10 and 11, further asserted

that, late Subhash Palshetkar – Plaintiff No. 1 and his son

Amit P1/1 avoided to execute the instrument in favour of

the Respondent Nos. 10 and 11. Amit Palshetkar – P1/1

passed away in the year, 2022. Thereupon, the Respondent

Nos. 10 and 11 became aware of the instant suit. Hence,

the Respondent Nos. 10 and 11 sought their impleadmen t

as party defendants to the suit.

4.7By an order dated 22

nd

July, 2024, the learned Civil

Judge allowed the said application recording

inter alia

that, the plaintiffs had no objection to implead the

Respondent Nos. 10 and 11. The petitioners challenged the

said order in Writ Petition (stamp) No. 25839/2024.

SAINATH, PA 6/21

4.8By an order dated 23

rd

September, 2024, the Writ

Petition was disposed with liberty to the petitioner to seek

review of the said order.

4.11By the impugned order, the learned Judge, rejected

the application for review observing

inter alia that, since

the Respondent Nos. 10 and 11 were claiming some rights

in respect of the suit property in order to avoid multiplicity

of the proceedings, it would be just and proper to implead

the Respondent Nos. 10 and 11 as party defendants.

4.12Being aggrieved, the petitioners have again invoked

the writ jurisdiction.

5.I have heard Mr. Rohaan Cama, the learned Counsel

for the petitioners, and Ms. Aarti Bhandari, the learned

Counsel for the Respondent Nos. 10 and 11, at some

length. With the assistance of the learned Counsel for the

parties, I have perused the material on record.

6.Mr. Cama, the learned Counsel for the petitioners,

submitted that, the learned Civil Judge has completely

misconstrued the scope of the provisions contained in

Order I Rule 10 of the Code, and, thus, misdirected himself

SAINATH, PA 7/21

in ordering the impleadment of the Respondent Nos. 10

and 11 who can, at best, be said to have a cause of action

against deceased Plaintiff No. 1, which is contingent upon

the outcome of the instant suit. However, the Respondent

Nos. 10 and 11 by no stretch of imagination can be either

necessary or proper parties. Since the instant suit revolves

around the instruments purportedly executed by the

Plaintiff Nos. 2 to 7 in favour of the Plaintiff No. 1, on the

one part, and Defendant Nos. 1 and 2, on the other part,

the presence of the Respondent Nos. 10 and 11 is not at all

necessary for passing a decree or for an effectual and

complete adjudication of the suit.

7.Mr. Cama further submitted that, the learned Civil

Judge was swayed by the factor of avoiding the multiplicity

of the proceedings. However, the crucial fact that the claim

of Respondent Nos. 10 and 11 was so divergent as to

warrant adjudication, in the instant suit, was completely

lost sight of. A strong reliance was placed by Mr. Cama on

a three-Judge Bench judgment of the Supreme Court in

the case of Kasturi Vs. Iyyamperumal & ors.

1.

to buttress

the submission that, the provisions of Order I Rule 10,

1 (2005) 6 SCC 733

SAINATH, PA 8/21

cannot be resorted to implead the parties for resolution of

controversies which are not involved in the suit.

8.In opposition to this, Ms. Bhandari, the learned

Counsel for the Respondent Nos. 10 and 11, would submit

that, since deceased Plaintiff No. 1 had executed an

agreement in favour of the Respondent Nos. 10 and 11 to

convey 7,000 sq. feet built up area over the suit property

and accepted a valuable consideration of Rs.3,02,40,000/-

(Rupees Three Crores Two Lakhs Forty Thousand), the

Respondent Nos. 10 and 11 have a de�nite interest in the

subject matter of the suit. Any decree passed in the instant

suit would bear upon the rights of the Respondent Nos. 10

and 11. Therefore, the learned Civil Judge was fully

justi�ed in directing the impleadment of the Respondent

Nos. 10 and 11 as party defendants to the suit. Attention of

the Court was invited to the statements of accounts and

bank passbooks which purportedly evidence the transfer of

the amount by the Respondent Nos. 10 and 11 in favour of

the deceased Plaintiff No. 1.

9.I have carefully perused the averments in the plaint

and the application for impleadment of the Respondent

SAINATH, PA 9/21

Nos. 10 and 11. The tenor of the plaint is that, the Plaintiff

Nos. 2 to 7 were the original owners of the suit property.

The Plaintiff Nos. 2 to 7 entered into an agreement to sell

the suit property in favour of the Plaintiff No. 8. The said

transaction did not materialize. Thereupon, the Plaintiff

Nos. 2 to 7 purportedly executed a deed of conveyance in

favour of the Plaintiff No. 1 on 28

th

November, 2008. The

Defendant Nos. 1 and 2 have propounded the purporte d

deed of conveyances executed by the Plaintiff Nos. 2 to 7 on

14

th

November, 2008 and 18

th

September, 2008,

respectively. The plaintiffs claimed those and the allied

instruments in favour of the Defendant Nos. 1 and 2 are

null, void and not binding upon the plaintiffs.

10.Apparently, the deeds of conveyance in favour of the

Defendant Nos. 1 and 2 were executed and registered prior

in point of time than the deed of conveyance dated 28

th

November, 2008, executed and registered in favour of the

Plaintiff No. 1 by Plaintiff Nos. 2 to 8. Thus, the essential

contest in the suit is which of the three instruments

purportedly executed by the Plaintiff Nos. 2 to 7 is legal

and valid.

SAINATH, PA 10/21

11.Keeping in view the aforesaid nature of the contest in

Suit No. 615/2010, the justi�ability of the impugned orders

to implead the Respondent Nos. 10 and 11 deserves to be

examined.

12.The Respondent Nos. 10 and 11 claimed that,

Subhash Palshetkar - deceased Plaintiff No. 1 had entered

into an agreement on 04

th

December, 2009, thereby

agreeing to assign FSI admeasuring 70,000 sq. feet (built

up) including TDR to be consumed on the suit property for

a consideration of Rs. 6,04,80,000/- (Rupees Six Crores

Four Lakhs Eighty Thousand). Receipt of an amount of Rs.

3,02,40,000/- (Rupees Three Crores Two Lakhs Forty

Thousand) towards part consideration was acknowledged

thereunder. The Respondent Nos. 10 and 11 further

claimed that, they could not pursue the matter as

Subhash Palshetkar was arrested by the Police in the year,

2009 and passed away in the year, 2012, while he was in

judicial custody, and Amit Palshetkar P1/1, the son of

deceased Plaintiff No. 1 kept assuring the Respondent Nos.

10 and 11 that necessary instruments would be executed

in favour of the Respondent Nos. 10 and 11.

SAINATH, PA 11/21

13.It becomes explicitly clear that, the Respondent Nos.

10 and 11 seek to enforce an obligation, created under the

agreement dated 04

th

December, 2009, attached to the suit

property under Section 40 of the Transfer of Property Act,

1882. Incontrovertibly, the remedy of Respondent Nos. 10

and 11 is to seek the speci�c performance of the contract

contained in the said agreement.

14.Without delving into the question of the justi�ability

of such claim for speci�c performance of the contract,

contained in the said agreement, for the purpose of the

determination of the controversy at hand, it is necessary to

note that, the said contract can be speci�cally enforced

only when there is no cloud on the title of the plaintiffs.

Therefore, the claim of the Respondent Nos. 10 and 11

hinges upon the declaration of title of the Plaintiff No. 1

over the suit property, in the instant suit. With the

aforesaid clarity on facts, the sustainability of the

impugned order on the touchstone of the governing legal

principles is required to be tested.

15.It is trite, the matter of addition or deletion of a party

to the suit is not one of the initial jurisdiction but that of

SAINATH, PA 12/21

judicial discretion. Like in other matters, where such

discretion is required to be exercised, the discretion to add

or delete a party to the suit is required to be exercised

keeping in view the object of the enabling provision. If the

Court �nds that a party is a necessary party, then the

impleadment of such a party becomes imperative, lest the

court cannot pass an effective decree. In a case where the

impleadment of a party is sought as a proper party, then

the Court has to pose unto itself a question, as to whether

the presence of such person is warranted for an effectual

and complete adjudication of the dispute, though such

person is not a necessary party.

16.The distinction between a necessary and a proper

party is well marked. In the case of Kasturi vs.

Iyyamperumal (supra), on which reliance was placed by Mr.

Cama, a three-Judge Bench of the Supreme Court

enunciated that necessary parties are those persons in

whose absence no decree can be passed by the Court and

there must be a right to some relief against such party in

respect of the controversies involved in the proceedings,

and proper parties are those whose presence before the

SAINATH, PA 13/21

Court would be necessary in order to enable the Court

effectually and completely to adjudicate upon and settle all

the questions involved in the suit although no relief was

claimed against such person.

17.In the case of Mumbai International Airport Pvt. Ltd.

Vs. Regency Convention Centre and Hotels Pvt. Ltd. &

ors.

2

, the Supreme Court expounded the distinction

between necessary party and proper party, as under:

“15. A “necessary party” is a person who ought to

have been joined as a party and in whose absence not

effective decree could be passed at all by the court. If a

“necessary party” is not impleaded, the suit itself is

liable to be dismissed. A “proper party” is a party who,

though not a necessary party, is a person whose

presence would enable the court to completely,

effectively and adequately adjudicate upon all matter in

dispute in the suit, though he need not be a person in

favour of or against whom the decree is to be made. If a

person is not found to be a proper or necessary party,

the court has no jurisdiction to implead him, against

the wishes of the plaintiff. The fact that a person is

likely to secure a right/interest in a suit property, after

the suit is decided against the plaintiff, will not make

such person a necessary party or a proper party to the

suit for speci�c performance.”

18.In the case of Ramesh Hirachand Kundanmal Vs.

Municipal Corporation of Greater Bombay & ors.

3

, the

Supreme Court enunciated that, the expression, “whose

presence before the Court may be necessary in order to

2 (2010) 7 SCC 417

3 (1992) 2 SCC 524

SAINATH, PA 14/21

enable the Court effectually and completely to adjudicate

upon and settle all the questions involved in the suit”

indicates that, the Court is empowered to join a person

whose presence is necessary for the speci�ed purpose and

cannot under the rule direct the addition of a person

whose presence is not necessary for that purpose. If the

intervener has a cause of action against the plaintiff

relating to the subject matter of the existing action, the

Court has power to join the intervener so as to give effect

to the primary object of the order which is to avoid

multiplicity of actions.

19.The Supreme Court further clari�ed that, it cannot

be said that, the main object of the rule is to prevent

multiplicity of actions though it may incidentally have that

effect. But that appears to be a desirable consequence of

the rule rather than its main objective. The observations in

Paragraph No. 14 read as under:

“14. It cannot be said that the main object of

the rule is to prevent multiplicity of actions

though it may incidentally have that effect. But

that appears to be a desirable consequence of

the rule rather than its main objective. The

person to be joined must be one whose presence

is necessary as a party. What makes a person a

SAINATH, PA 15/21

necessary party is not merely that he has

relevant evidence to given on some of the

questions involved; that would only make him a

necessary witness. It is not merely that he has

an interest in the correct solution of some

question involved and has thought of relevant

arguments to advance. The only reason which

makes it necessary to make a person a party to

an action is so that he should be bound by the

result of the action and the question to be

settled, therefore, must be a question in the

action which cannot be effectually and

completely settled unless he is a party. The line

has been drawn on a wider construction of the

rule between the direct interest or the legal

interest and commercial interest. It is, therefore,

necessary that the person must be directly or

legally interested in the action in the answer,

i.e., he can say that the litigation may lead to a

result which will affect him legally that is by

curtailing his legal rights. It is dif�cult to say

that the rule contemplates joining as a

defendant a person whose only object is to

prosecute his own cause of action.”……..

(emphasis supplied)

20.Applying these principles, to the facts of the case at

hand, it is evident that, the Respondent Nos. 10 and 11

intend to prosecute their own cause of action against the

Plaintiff No. 1. The net effect would be that there would be

SAINATH, PA 16/21

two distinct contests. First, between the plaintiffs on the

�rst part, and Defendant Nos. 1 and 2, on the other part,

in regard to the legality and validity of the rival

instruments set up by the plaintiff No. 1, and Defendant

Nos. 1 and 2. Second, between the Plaintiff No. 1 and the

Respondent Nos. 10 and 11 in regard to the speci�c

performance of the contract between Plaintiff No. 1 and

Respondent Nos. 10 and 11, under the agreement date d

04

th

December, 2009. The question that thus wrenches to

the fore is whether the presence of the Respondent Nos. 10

and 11 is necessary to enable the Court to adjudicate and

settle, “all the questions involved in the suit”. The aspects

of existence of an agreement for sale between the Plaintiff

No. 1 and Respondent Nos. 10 and 11, the legal

enforceability of the said agreement, and the entitlement of

Respondent Nos. 10 and 11 to speci�c performance thereof

are all matters which do not appear to be the questions

involved in the suit.

21.Mr. Cama is justi�ed in canvassing a submission

that, the claim of the Respondent Nos. 10 and 11 hinges

upon the declaration of title sought by the Plaintiff No. 1.

The reliance placed by Mr. Cama on the judgment of the

SAINATH, PA 17/21

Supreme Court in the case of Kasturi Vs. Iyyamperumal

(supra), explaining the import of the expression, “all the

questions involved in the suit” appears to be apposite. The

Supreme Court observed are as under :-

“16. That apart, from a plain reading of the

expression used in sub-rule (2) Order 1 Rule 10

CPC “all the questions involved in the suit” it is

abundantly clear that the legislature clearly

meant that the controversies raised as between

the parties to the litigation must be gone into

only, that is to say, controversies with regard to

the right which is set up and the relief claimed

on one side and denied on the other and not the

controversies which may arise between the

plaintiff-appellant and the defendants inter se or

questions between the parties to the suit and a

third party”. ……...

22.In the case of Mumbai International Airport (supra)

in regard to the impleadment of a proper party, the

Supreme Court delineated the approach to be adopted by

the Court in the following terms : -

“24.4If an application is made by a plaintiff

for impleading someone as a proper party,

subject to limitation, bona �des, etc., the

court will normally implead him, if he is

found to be a proper party. On the other

hand, if a non-party makes an application

SAINATH, PA 18/21

seeking impleadment as a proper party and

the court �nds him to be a property party,

the court may direct his addition as a

defendant; but if the court �nds that his

addition will alter the nature of the suit or

introduce a new cause of action, it may

dismiss the application even if he is found to

be a proper party, if it does not want to widen

the scope of the speci�c performance suit; or

the court may direct such applicant to be

impleaded as a proper party, either

unconditionally or subject to terms. ……

25. In other words, the court has the

discretion to either to allow or reject an

application of a person claiming to be a

proper party, depending upon the facts and

circumstances and no person has a right to

insist that he should be impleaded as a party,

merely because he is a proper party.”

23.It is true, the aforesaid enunciation was made in the

context of a suit for speci�c performance of the contract for

sale of the property. However, the principle may govern the

facts-situation formed by the other jural relationship as

well. If the Court �nds that, the addition of a party will

alter the nature of the suit or introduce a new cause of

action, it may dismiss the application even if he is found to

SAINATH, PA 19/21

be a proper party, if the Court does not want to widen the

scope of the suit.

24.The conspectus of the aforesaid consideration is that,

the learned Civil Judge did not consider the implications of

the impleadment of Respondent Nos. 10 and 11 who have ,

at best, a claim for speci�c performance of the contract

executed by and between the Plaintiff No. 1 and

Respondent Nos. 10 and 11, in a suit where the essential

contest is regarding the legality and validity of the

instruments executed by the plaintiff Nos. 2 to 7 in favour

of the Plaintiff No. 1, and Defendant Nos. 1 and 2. The

impleadment of the Respondent Nos. 10 and 11 would

completely alter the nature of the contest and introduce a

new cause of action qua Plaintiff No. 1 only. Resultantly, it

may embarrass the trial of the instant suit. Hence, the

impugned orders cannot be sustained. Therefore, the Writ

Petition deserves to be allowed.

25.Thus, the following order:-

: : O R D E R : :

i] The Writ Petition stands allowed.

SAINATH, PA 20/21

ii] The Impugned order dated 22

nd

July, 2024, as

well as order dated 22

nd

January, 2025 stand

quashed and set aside.

iii]The application for impleadment of the

Respondent Nos. 10 and 11 as party defendants

to the suit stands rejected.

iv] It is further clari�ed that, this order would

not preclude the Respondent Nos. 10 and 11

from invoking the remedies that are available in

law by instituting separate proceedings before

the appropriate forum.

v] Rule made absolute to the aforesaid extent.

No costs.

[N. J. JAMADAR, J.]

SAINATH, PA 21/21