ORAL JUDGMENT :- Heard the learned Counsel for the parties.

2. This Writ Petition under Article 227 of the Constitution of India seeks to challenge the order dated 10th March, 2003 passed by the Civil Judge, Junior Division, Kalyan, below the Application (Exhibit 65) filed by the petitioners (original applicants) herein to implead them as defendants in Regular Civil Suit No. 283 of 1986. That Application has been rejected.

3. The Suit has been filed by respondent Nos. 1 to 8 to evict respondent No.9 from the suit premises. Respondent No.9 is stated to be a tenant of the suit premises and respondent No. 10 is stated to be a sub-tenant. The Suit is filed under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "the Bombay Rent Act"). The Suit is filed on the ground of arrears of rent, non-user of the property and carrying out permanent construction in the suit premises without the permission of the landlord.

4. The petitioners (original applicants) contend that the property was owned initially by one Siddique. His son was one Baba. The name of Baba's son was Mohmd. Saeed. The name of wife of Mohmd. Saeed was Bisa Bibi. This Mohmd. Saeed had two children from this marriage viz. son - Imam and daughter - Bibi Begum. The wife of this Imam was Zoharabai. The plaintiffs are claiming the ownership of the property as the purchasers of the property from Zoharbai, whereas the applicants are claiming to be the legal heirs and representatives of one Shafiq, who was the nephew of this Bisa Bibi.

5. The argument on behalf of the applicants is two-fold. Firstly, it is submitted that earlier this Shafiq was brought on record, though his name came to be deleted and since the applicants are heirs and legal representatives of this Shafiq, they are entitled to come on record. Shafiq died in September, 2001 but the applicants who were defending that Application ought to have filed a counter contending that Shafiq was rightly joined in the proceedings. The second submission is on the basis of title that they are the owners of the property, they have a stake therein and they should be allowed to be impleaded.

6. As far as the first submission is concerned, Mr. Godbole appearing for respondent Nos.1 to 3 and 5 and 7, pointed out that there are number of proceedings between the parties and the above-referred Shafiq is a party to some of those proceedings and has joined in some of those proceedings on his own. The submission of Mr. Godbole is that while carrying out the amendment in the present proceedings, by mistake, it appears that the name of this Shafiq came to be added. He pointed out that in fact the plaintiffs had moved an Application to join one Hissamuddin Saudaghar as defendant No.2 in that Suit since according to the original plaintiffs he was inducted as the sub-tenant and the decree was required to be passed against him. It was their case that while carrying out that amendment this Shafiq came to be added erroneously and, therefore, they moved a specific Application (Exhibit-56) on 22nd January, 2002 pointing out that this Shafiq had not made any Application to join in these proceedings. In paragraph 2 of this Application it was specifically averred that there have been a number of proceedings between the parties and this Shafiq has been joined in other proceedings by making another Application. It is fairly stated that the plaintiffs formed an impression that in the present proceeding also this Shafiq was to be joined. It is clearly stated that this was mis-understanding on the part of the plaintiffs and, therefore, this Application was moved to delete his name and to remove the relevant Exhibits bearing Nos. 50, 51, 52, 53 and 55 from the record.

7. It is pertinent to note that this Application was moved on 22nd January, 2002 and came to be decided on 5th'July, 2002. No counter was filed to this Application. This is a very relevant factor inasmuch as a specific averment was made in the Application dated 22nd J

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