Point of Law: Code of Civil Procedure under Order 22 Rule 10, deals with the assignment, creation order-volution of any interest. In those cases party can be joined. Those contingencies may occur in case of transfer pendente lite, death of trustee or change in management of the trust or society are some of the instances. However that provision is applicable if the contingencies occur during the pendency of the suit.

JUDGMENT :

S.M. MODAK, J.

1. By these two writ petitions, the Original Plaintiffs are challenging the Orders passed by the City Civil Court in Suit No. 6117 of 2007 dated 05.10.2018. Those two Orders were passed on two Notice of Motions. They were filed by the Applicant/present Respondent No. 2 whereas present Respondent No. 1 is the sole defendant. Parties are referred to by their original status as per the Suit.

2. The details of those motions are as follows:

(A) Notice of Motion No. 1346 of 2018

For issuing direction to add applicant as party defendant.

(B) Notice of Motion No. 1925 of 2017

Filed to set aside the Order closed evidence and defendant ex-parte.

3. By the two impugned Orders, the City Civil Court (hereinafter referred to as “Trial Court”) was pleased to allow both these two Notice of Motions. The issue involved in these petitions is:

(a) As to whether the impleadment of applicant is necessary for adjudication of the dispute involved in that suit.

(b) Whether order to proceed Ex-parte need to be set aside.

4. On this background, we have heard the learned Advocate Dr. Shri Abhinav Chandrachud for the Petitioners and the learned Advocate Shri Ankit Lohia for the Applicant/Respondent No. 2. No one has appeared on behalf of Respondent No. 1-Original defendant. As both the impugned Orders are passed in two Notice of Motions arising out of two orders passed in the same suit, by consent these petitions are decided together. In support of his plea, the learned Advocate Dr. Shri Chandrachud submitted as follows:

(a) There is no privity of contract between the plaintiffs on one hand and the applicant on the other hand.

(b) The issue involved before the Trial Court is about payment of service charges and the applicant is no way concerned with those service charges.

(c) The applicant can neither be considered as necessary nor proper party.

(d) The certificate of Incorporation produced by the applicant cannot be said to be a proper certificate issued under the Part IX of the Companies Act, 1956.

(e) On bare reading of that certificate it cannot be said that provisions of Section 565 of the Companies Act were fulfilled either by erstwhile Company/sole defendant or by alleged successor/applicant.

(f) The presence of present applicant being trespasser is very much necessary before the Small Causes Court and their impleadment in that Court does not warrant their impleadment before the City Civil Court.

5. In support of his submission he relied upon the following judgments:

(i) Tarun Keshrichand Shah and Another vs. M/s Kishore Engineering Company and Others in Criminal Appeal No. 153 of 2019

(ii) Tarun Keshrichand Shah and Another vs. Kishore Engineering Co. and Another in Writ Petition (ST) Nos. 1693, 1695/2019, Order dated 23.01.2019

(iii) Advani Oerlikon Ltd. vs. Machindra Govind Makasare and Others

(iv) Sandeep Ramesh Solanki and Others vs. Sou. Shevanti Dadoba Nashte, 2019 SCC Online Bom. 1313 : (2019) 5 AIR Bom. R. 427 : (2019) 6 Bom. C.R. 752

(v) Antonio Menezes vs. Vithola Shamba Shetye and Others

6. As against this, the learned Advocate Shri Ankit Lohia strongly supported those impugned Orders and he made following submissions:

(A) The presence of applicant is very much necessary because they are necessary party for deciding the controversy.

(B) The plaintiffs though aware about existence of the applicant-Company (as Company is one of the defendant before the Small Causes Court) still Plaintiffs have not deliberately joined them as party defendant before City Civil Court.

(C) Certificate of registration has got evidentiary value and it has to be accepted even at an interim stage.

7. In support of his submission he relied upon the following judgments:

(a) Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and Others, (1992) 2 SCC 524

(b) Abdul Rasheed Paddar vs. Pramod Sood, decided on 15.12.2015

(c) S. Subbarayudu vs. The Dist