The main legal point established is that the appellate court has the discretion to permit the joinder of necessary parties at the appellate stage, as provided under Order I Rule 10(2) of the Code of Civil Procedure.

JUDGMENT

Sharmila U. Deshmukh, J. - Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.

2. The challenge in the present petition is to the judgment and order dated 03rd April, 2019 passed in Regular Civil Appeal No. 204 of 2011 thereby rejecting petitioner's application filed under Order VI Rule 17 read with Order I Rule 10 of the Code of Civil Procedure, 1908 (for short 'Code') for impleading his step sisters at the appellate stage.

3. Facts of the case are as under :

The petitioner had instituted R.C.S. No. 325 of 2005 before the Civil Judge Junior Division, Jalgaon seeking partition and separate possession of the ancestral property and also for a declaration that the sale deed executed by the respondent No. 1 in favour of the respondent No. 2 is not binding on the share of the petitioner. The trial court framed fourteen issues which have been reproduced as under :

1. Does plaintiff prove that plaintiff and defendant Nos. 1 to 4 consists of Hindu joint family ?

2. Whether suit properties are properly described ?

3. Whether suit is bad in law ?

4. Whether plaintiff has paid proper court fees stamps, if not what are its effect ?

5. Whether the suit is bad for non joinder of necessary parties ?

6. Whether the defendants prove that suit is bad for non joinder of all the properties ?

7. Does plaintiff proves that property along with plaint schedule 'A' is Hindu joint family property of plaintiff and defendant Nos. 1 to 4 ?

8. Does plaintiff proves that, property along with plaint schedule 'B' is purchased by defendant No. 1 from the income of joint family property, at schedule 'A' and therefore, property schedule 'B' is also Hindu joint family property of plaintiff and defendant Nos. 1 to 4 ?

9. Whether plaintiff proves that defendant No. 1 transferred half portion of plaint schedule 'A' property by way of sale deed dt. 17/06/2005 for Rs. 50,000/-to defendant No. 2 without having any legal necessity or debt of Hindu joint family ?

10. Whether plaintiff proves that he is entitled for declaration as to sale-deed dt. 17/06/2005 to the extent of his share is not binding on him ?

11. Whether plaintiff proves that he is having 1/5 share in plaint schedule 'A' and 'B' properties ?

12. Whether plaintiff proves that he is entitled for partition and separate possession of properties described in plaint schedule 'A' and 'B' ?

13. Whether plaintiff is entitled to claim mesne profit ?

14. What order and decree ?

One of the issues framed by the Trial Court was whether the suit was bad for non joinder of necessary parties. The Trial Court answered all the issues in affirmative as regards the Hindu joint family property and as regards the share in the said property. The issue as regards the non joinder of necessary party was answered in the affirmative and the suit came to be dismissed on the finding of non joinder of necessary parties. R.C.A No. 204 of 2011 came to be filed by the petitioner challenging the judgment and decree dated 21st September, 2011. In the said appeal, the petitioner filed an application below Exhibit 25 on 05th December, 2017 for impleading his step sisters as parties, which came to be rejected.

4. Heard Shri Shendurnikar, learned counsel appearing for the petitioner and Shri Tripathi, learned counsel appearing for respondent Nos. 1 to 3.

5. Shri Shendurnikar, learned counsel for the petitioner submits that all the issues in the suit were answered in favour of the petitioner and only on the ground of non joinder of necessary party the suit came to be dismissed, which defect the petitioner sought to cure at the appellate stage. He would further submit that the application for impleadment has been rejected on the ground of delay for which the impugned order holds that there is no explanation. He would further submit that during the arguments before the Trial Court a request was made on behalf of learned counsel for the petitioner to suo motu exercise the discretion under Order I Rule 10(2) of the Cod