(21 & 24)-WP-5041 & 5075-22.doc.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5041 OF 2022

WITH

WRIT PETITION NO.5075 OF 2022

M/s. Dolphin Developer

..Petitioner

Versus

Mr. Tharakan David Joseph

Since deceased through legal heirs

Mr. Desmond Tharakan Joseph and Ors.

..Respondents

Mr. Rajendra B. Mokashi a/w Aditya R. Mokashi & D. S. Padwal, for

the Petitioner in both Petitions.

Mr. Rajesh Singh a/w Pradhuman Chavhan, for the Respondent

Nos.1a to 1c in both Petitions.

Mr. Ashok C. Giri, for the Respondent No.2 in both Petitions.

CORAM : NITIN W. SAMBRE, J.

DATE : 25^th APRIL, 2022

P.C.

1.

The issue involved in both these petitions is common viz.

as regards impleadment of a party to the suit in the capacity of

defendant and as such, both these petitions are heard and decided

together.

2.

In Writ Petition No.5075 of 2022 legality of the order

dated 2^nd March, 2022 passed in Chamber Summons No.1349 of

2021, is questioned whereby the Trial Court i.e. City Civil Court,

Dindoshi allowed the Chamber Summons in terms of prayer clause

(a) and (b). The prayer clause (a) and (b) of the Chamber

BGP.

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BALAJI

GOVINDRAO

PANCHAL

Digitally

signed by

BALAJI

GOVINDRAO

PANCHAL

Date:

2022.04.27

10:22:26

+0530

(21 & 24)-WP-5041 & 5075-22.doc.

Summons reads thus :-

“(a) That the Plaintiff be directed to add the Applicant as the

Defendant No.2 to the Plaint as well as other pending

Applications/s, Notice of Motion as per the Schedule

annexed hereto;

(b)That the Plaintiff be directed to carry out such other and

further consequential amendment, as may be necessary;

(c) That the cost of this Chamber Summons may be provided

for;

(d)For such other and further reliefs a the nature and

circumstances of the case may require.”

3.

The prayer (a) permits the applicant to the said

Chamber Summons to be added as defendant No.2 and the prayer

(b) pertains to directions to the plaintiff/petitioner to carry out

consequential amendment.

4.

As far as Writ Petition No.5041 of 2022 is concerned,

same is arising out of Short Cause Suit No.1391 of 2013 on the file

of Bombay City Civil Court at Dindoshi, wherein vide order dated

2^nd March, 2022, Chamber Summons No.1348 of 2021 for

impleadment of defendant No.2 came to be allowed.

5.

The submissions are, the proposed defendant No.2 stood

retired from the partnership firm by deed of retirement which was

executed on 27^th October, 2021. According to him, after the

BGP.

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respondent No.2 i.e. defendant No.2 stood retired from the

partnership firm, the petitioner/plaintiff has undertaken to

indemnify the interest of the said party post his retirement.

6.

Clause 4 of the said retirement-deed reads thus:-

“4.The Continuing Partners agree to pay all the debts and

liabilities of the said firm and to indemnify and keep

indemnified the Retiring Partner against all such debts

and liabilities and all loss, costs, charges and expenses

that the Retiring Partner may incur or suffer on account

thereof.”

7.

As such the contentions are, for deciding the claim in the

suit, which is for recovery of damages, the respondent No.2 is

neither necessary nor appropriate party under the provisions of

Order I Rule 10 of the CPC.

8.

Apart from above, my attention is also invited to the

consent terms dated 17^th November, 2021 in S. C. Suit No.2239 of

2021. It is claimed that even in the said consent terms based on

which the compromise decree is drawn in accordance with

provisions of Order XXIII Rule 3 of the CPC, the petitioner had

already undertaken to indemnify the defendant No.2. That being so,

it is claimed that the order impugned is not sustainable.

9.

Respondents jointly opposed the prayer for showing

indulgence in the petition by upsetting the order impugned,

BGP.

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(21 & 24)-WP-5041 & 5075-22.doc.

whereby impleadment of respondent No.2 is granted. The

c