2022:BHC-AS:16279 IN THE HIGH COURT OF JUDICATURE AT BOMBAY Anand CIVIL APPELLATE JURISDICTION WRIT PETITION 9970 OF 2019 Kalpana Vijaysinh Savant & anr. .Petitioners Vs.

Barkha Amir Haldive @ Barkha .Respondents Govind Valanju & ors.

Mr. Sandesh Patil i/b. Mr. Kiran Bhagat & Ms Divya Pawar, Advocate, for the Petitioners Mr. Chetan Patil, Advocate, for the Respondents CORAM : ROHIT B. DEO, J.

DATE : 14.07.2022 JUDGMENT . Heard.

2. Rule.

3. With consent, the Petition is fnally heard at the admission stage.

4. The Petitioners are the Plaintiffs in Special Civil Suit 17 of 2018 which is instituted seeking specifc performance of Agreement dated 16.02.2015, whereunder Defendants 1 & 2 – Respondents 1 & 2 herein, agreed to sell the suit property to the Plaintiffs, on terms and conditions stipulated therein. The suit property is described in the plaint, as land assigned Gat 49/1 admeasuring 5-22 R situated in Sawantwadi, District – Sindhudurg.

5. Respondent 1 is the Third Party, who preferred an application under O. I, Rule 10 of the Code of Civil Procedure, 1908 ( for short ‘CPC’ ) seeking impleadment.

6. The learned trial Judge was pleased to allow the application preferred under O. I, Rule 10 of the CPC vide Order dated 25.03.2019, which is impugned herein.

7. The short question involved in the Petition is whether the Third Party is necessary or proper party to the suit for specifc performance of the Agreement. The learned trial Judge reasons that the Third Party is a consenting party and has right and interest in the suit property.

8. I have heard Mr. Sandesh Patil, learned counsel for the Plaintiffs and Mr. Chetan Patil, learned counsel for the Third Party and with their able assistance, the relevant material inter alia recitals in the suit Agreement have been scrutinized.

9. Mr. Sandesh Patil would submit that the learned trial Judge has committed a serious error in holding that the Third Party has right and interest in the suit property. The extension of the submission is that the suit Agreement neither creates any right in favour of the Third Party nor saddles the Third Party with any obligation or liability, and the Plaintiffs as Dominus litis cannot be compelled to wage a legal battle against the Third Party against their wish.

10. In rebuttal, Mr. Chetan Patil, who represents the Third Party would submit, relying on the decision of the Apex Court in Kasturi Vs. Iyyamperumal And Ors., reported in (2005) 6 Supreme Court Cases 733, that the fact that the Third Party is a consenting party to the suit Agreement is suffcient to clothe the Third Party with the status of proper party, if not necessary party.

11. Both the learned counsel have invited my attention to certain decisions, which shall be considered at a later stage, to the extent that the decisions are relevant.

12. Before I consider the rival submissions, it would be opposite to note that substratum of the pleadings and the recitals the suit Agreement.

13. The Plaintiffs aver that Defendants 1 & 2 entered into Agreement dated 16.02.2015, where under the suit property was agreed to be transferred and conveyed in favour of the Plaintiffs by sale for consideration of Rs. 28,80,000/- ( Rs. Twenty Eight Lacs And Eighty Thousand). The Plaintiffs further aver that various amounts were paid to the Defendants from time to time, and the balance sale consideration which is payable is Rs. 4,80,000/- (Rs.Four Lacs Eighty Thousand) which the Plaintiffs were, and are, ready and willing to pay. The rest of the averments in the suit plaint seek to demonstrate that while the Plaintiffs were and are ready and willing to perform their part of the contract by making the balance payment of the consideration, Defendants 1 & 2 are resiling from the terms and conditions of the contract. Such is broadly, the case of the Plaintiffs.

14. Defendants 1 & 2 fled their Written Statement and their version is briefy and broadly thus. Defendants 1 & 2 contend that the suit Agreement does not refect the agreed consid