1997 Supreme(Bom) 279

IN THE HIGH COURT OF BOMBAY
V.R. Datar, J.
Shripatrao Dajiso Ghatage and another ..... Petitioners.
Versus
Usman Abdul Shaikh others ...... Respondents.
Civil Revision Application No. 183 of 1997, decided on 23-6-1997.
Advocates appeared :
S.M. Paranjape, for the petitioners.
Vineet B. Naik, for respondents No. 1 to 6.

Headnote:Section 115, Order II, Rule 3, Order XXIII, Rule 3- Trespass of land-Application for perpetual injunction-Plaintiff seeking deletion of names of some respondent-on basis of compromise-Rejection by Court-Held-Petitioner has right to choose his opposites-Order liable to be set aside.-So far as orders below Exhibits 139 and 144 are concerned, those orders are separate yet are based on the same reasons. In fact, Exhibit 139 filed by defendants No. 2 to 6 was really not maintainable once the petitioner chose to delete their names. It was not open to them to oppose that prayer and yet pray that the suit should be proceeded against them.

       Section 115, Order XXIII, Rule 3-Specific Relief Act, 1963, Section 37-Land being trespassed-Suit for perpetual injunction-Compromise-Not given importance-Rejection by Court on ground of compromise pursis already filed-But refusing order and setting date for hearing-Held-A contradictory order is liable to be set aside.-So far as orders below Exhibits 134 and 137 passed by the learned Civil Judge, Kagal are concerned, those are clearly erroneous on the face of the record. The application Ex. 134 Was in regard to permission sought by the petitioners to put certain questions in the examination in chief regarding the deed of power of attorney executed by petitioner No. 1 in favour of Ganpatrao Gopalrao Jadhav. That application has been disposed of because there had been a compromise between the parties and this order is passed on 22nd November, 1996. Curiously, the learned Judge on the same day refused to pass decree in terms of the compromise and directed the suit to be heard on merits. If that was so it was erroneous on the part of the trial Court to dismiss that application on the ground that there was a compromise. Had it been rejected on some other ground. It Would have been a different matter. Obviously this order cannot be allowed to be sustained.

       Section 115, Order XXIII, Rule 3-Specific Relief Act, 1963, Section 37-Perpetual injunction sought by plaintiff-Trespassing land-Evidence of compromise-Contention-Due to hard hearing could not listen the Judge properly-Held-party should be heard and matter be decided on evidence.-Under the circumstances, Court felt that order passed by the learned Civil Judge below Exhibit 144 and so also below Exhibit 139 should be set aside and the learned Judge should be directed to reconsider and decide exhibit 144 after giving due opportunity to petitioners plaintiffs and defendant No.1 in regard to the allegation made in the said application. To that extent rule should be made absolute.

       Order I, Rule 10-Plaintiff sought to delete names of defendants-Improperly joined-Right of plaintiff to delete names of defendants-Petitioner plaintiff defrauded defendants-Enquiry is necessary-Matter remanded.- The plaintiff is the dominus litis meaning thereby that it is his sweet free will against whom he should proceed where the plaintiffs filed an application to delete the names of some of the defendants, neither it was open to the defendants to challenge that pursis nor the learned Judge should have forced upon the plaintiffs to proceed with their suit against those defendants. The plaintiffs would suffer the consequences of deleting the name of the defendants if really, they have got any interest and the plaintiffs are having any impediment in execution of the decree if at all it is passed. Obviously once the names of the defendants are deleted, the decree if any, that would be passed, would not be binding upon them.

       Section 37-See Code of Civil Procedure, 1908, Section 115, Order XXIII, Rule 3.