A subsequent purchaser in pending litigation retains the right to lead evidence if invited as a necessary party, distinguishing it from cases where the original party has relinquished that right.

JUDGMENT

1. Heard Mr. Bhobe, learned Counsel for the Petitioner and Ms. Mesquita, learned Counsel for the Respondent No.1

2. The challenge in this Petition filed under Article 227 of the Constitution of India, is to an Order dated 24.01.2023 passed on the application dated 09.01.2023 at Exhibit D-185.

3. The Petitioner is the original Defendant No.3. The Respondent No.1- Original Plaintiff instituted a suit on 14.01.2008 against the Respondent No. 2/Original Defendant No.1 and the Respondent No.3/Original Defendant No. 2 seeking declaration that the Respondent No.1 has a right to obtain on lease the suit premises consisting of flat no.2-B located on the first floor of St. Pelegia Building, Vasco da Gama from Respondent No. 2/original Defendant No.2; that the lease deed dated 24.03.1999 in respect of the suit premises executed by Respondent No.2/Original Defendant No.1 in favour of Respondent No.3/original Defendant No.2 be declared null and void and the Respondent No.2 be commanded to execute lease deed in favour of Respondent No.1 by delivering possession of the suit premises to the Respondent No.1 and further for injunction. The Defendant No.1 is the landlord. The Plaintiff is a lessee in respect of FlatNo.2-A. The Plaintiff's case is that instead of leasing Flat No.2-B in his favour, the Defendant No.1 in violation of the lease agreement, leased Flat No.2-B in favour of Defendant No.2. Hence, the suit that the lease Flat No.2- in favour of Defendant No.2 is null and void.

4. The Defendant No.1 filed written statement dated 12.03.2008 opposing the suit. The Defendant No.1 also filed a counter claim seeking a decree that the Defendant No.1 is entitled to recover possession of flat no.2A and that the Plaintiff having failed and neglected to quit and vacate the flat no.2A, be ordered to deliver the vacant possession of the same to the Defendant No.1.

5. The Defendant No.2 filed his written statement on 03.04.2008 as also to the counter claim filed by the Defendant No.1 praying that the Suit of the Plaintiff be dismissed and the counter claim of the Defendant No.1 in terms of prayer clause (d) be granted.

6. In the meantime and during the pendency of the suit, the Defendant sold the suit property by registered Sale Deed dated 22.04.2021 to the Petitioner-Defendant No.3. On 09.06.2022, the Respondent No.1 filed an application under Order 1 Rule 10(2) of CPC seeking impleadment/addition of party and for striking out the Defendant no.1 from the array of Defendants, which application was marked as Exhibit D-150. By the application Exhibit D-150, the Plaintiff, inter alia stated that pursuant to the Sale Deed in favour of the Defendant No.3, the Defendant No.3 ceased to have any right or interest in the suit property/suit flat as the ownership vests in the Defendant No.3 and hence, the relief and the claim of the Plaintiff would lie against the Defendant No.3. It is averred that the Petitioner-Defendant No.3 was a necessary party to the proceedings as in his absence the suit would be incompetent. On the basis of the said plea, the Plaintiff sought for deletion of the Defendant No.1 and for substitution of the Defendant No.3.

7. By an Order dated 04.07.2022, the learned trial Judge allowed the application dated 09.06.2022 at Exhibit D-150 filed by the Plaintiff to the extent of joinder of the Petitioner herein as Defendant No.3. The learned Judge observed that the Defendant No.1 cannot be deleted in view of the counter claim of the Defendant No.1 wherein the Plaintiff was a party Defendant. The Petitioner was thus array