Rejection of an application for impleadment does not bar the granting of leave to appeal, and notice to the opposing party is not required before such leave is granted.

JUDGMENT :

M.M. SATHAYE, J.

1. Heard learned counsel for the parties.

2. By this application under Section 115 of the Code of Civil Procedure, 1908 (‘CPC’ for short), the Applicants are challenging the order dated 27.03.2023 passed by the District Judge-3, Kolhapur, granting leave to Respondent Nos. 6 to 8 to file appeal against the Judgment and Decree dated 15.02.2023 passed by 2^nd Joint Civil Judge, Senior Division, Kolhapur in Sp. Civil Suit No. 361 of 2000 (‘the said suit’ for short).

3. The Applicants are Plaintiffs and Respondent Nos. 1 to 5 are original Defendants. Respondent Nos. 6 to 8 are third parties (transferee pendent lite) who have been granted leave to file appeal which is numbered as Reg. Civil Appeal No. 61 of 2023.

4. Few relevant facts necessary for disposal of this application are as under. In the year 2000, the present Applicants filed Special Civil Suit No. 361 of 2000 against present Respondent Nos. 1 to 5 seeking specific performance of Agreement dated 12.09.1994 in respect of suit property, which is Plot No. 14 in Respondent No. 5 Society. During pendency of this suit, Respondent Nos. 6 to 8 filed an application (Exh.101) under Order I Rule 10 of the CPC for their impleadment in the said suit, on the basis of alleged lease deed dated 08.03.2004 executed by the said society in their favour after surrender of the suit property by Respondent Nos. 3 & 4. It is the case of Respondent Nos. 6 to 8 that they have invested considerable amount for the leasehold rights in the suit property and they are in possession of the same. The Trial Court rejected the said application Exh. 101 refusing to implead Respondent Nos. 6 to 8 vide its order dated 18.11.2017. This order was challenged by Respondent Nos. 6 to 8 by filing Writ Petition No. 4441 of 2018 in this Court. This petition was rejected by order of this Court dated 18.07.2019. One of the reasons was that Respondent Nos. 6 to 8 have filed the application belatedly when they had knowledge of the dispute and at a stage when suit was ripe for arguments. Incidentally, 3½ years thereafter, the suit was finally heard and decreed on 15.02.2023, granting specific performance directing Respondent Nos. 2 to 4 to execute the sale deed in favour of the Applicants. Respondent Nos. 6 to 8 thereafter filed an application before the Appellate Court seeking leave/permission to file first appeal, which application is allowed by the impugned order. In these circumstances, the present revision application is filed.

5. Mr. Pawar, learned counsel for the Applicants/Plaintiffs submitted that the impugned order is passed without notice to them and without giving them an opportunity of being heard. He submitted that CPC is a procedural law and notice of the said application Exh. 101 ought to have been given to the Applicants. That the impugned order is against the principle of natural justice. He has relied upon Section 141 and Section 142 of the CPC. He further submitted that Respondent Nos. 6 to 8 having failed in impledment, which order is confirmed by this Court, could not have been granted leave to file appeal, specially when this fact was not disclosed to the Appellate Court. He submitted that refusal to implead Respondent Nos. 6 to 8 having attained finality, the order acts as res-judicata (or at least constructive one) against them and therefore leave to file appeal could not have been granted. Mr. Pawar has also made submissions about the merits of the case of Respondent Nos. 6 to 8.

6. On the other hand, Mr. Narvankar, learned counsel appearing for Respondent Nos. 6 to 8 submitted that rejection of application under Order I Rule 10 of the CPC will not per se operate as a bar or ground to reject their application seeking leave to file appeal. He submitted that there is no clear provision under law making it necessary to issue notice to the Plaintiffs in situation like this. He submitted that leave to file appeal is akin to leave to file suit as contemplated under CPC or Letters Pate