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wp no.93 of 2020

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.93 OF 2020

M/s. Minescape Minerals Pvt. Ltd.

… Petitioner

Versus

Mr. Sudhir Murari Sawardekar & Ors.

... Respondents

Shri C.A. Coutinho, Advocate for the Petitioner.

Shri V.R. Tamba, Advocate for the Respondents.

Coram: - DAMA SESHADRI NAIDU, J.

Date: - 9 February 2021

ORAL ORDER:

Facts:

The petitioner purchased a piece of property from the respondents.

Later, he came to know that the respondents had no title to the property.

So, he repurchased the property from those whom he believed to be the

actual owners.

2. As the petitioner paid the sale consideration, first, to persons

without title to the property, he wanted to recover the money. So he filed

Special Civil Suit No.3/2011 before Civil Judge, Senior Judge, at Quepem.

He has sought a declaration that the Sale Deed the respondents executed

is void, and they should return the sale consideration. In that suit, the

respondents filed a counterclaim seeking a declaration and other

consequential reliefs. To put this counterclaim in perspective, we need to

narrate how the title to the property in question flowed.

3. One Murari Vithal Sawardekar was the head of the family, which

included his wife and daughter. When his wife died, the succession

opened, and the property fell to his daughter’s share. But the daughter,

too, predeceased him. Then, the property reverted to Murari Sawardekar,

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the father and head of the family. The respondents are the other children

of Murari Sawardekar.

4. But during his lifetime, Murari Sawardekar gifted the property to

one Vithal Sawardekar. It was through a registered Deed of Gift, dated

10.05.1984. So, when Murari Sawardekar died, he had no subsisting

interest in the property. That accepted, the question of the respondents’

succeeding to that unavailable estate would not arise. At least, this is the

petitioner's plea.

5. In the counterclaim, the respondents as the plaintiffs wanted the

Gift Deed, dated 10.05.1984, declared void. But they did not add the donee

or his legal representatives as parties to the counterclaim. They, in fact,

showed only the petitioners as the defendants in that counterclaim. It is

even though the petitioner was not a party to the document. In the same

year, in 2011, the petitioner filed the written statement and pointed out

that the donee's legal representatives are the necessary parties. In their

absence, he has contended, the counterclaim must fail for non-joinder of

necessary parties.

6. Nine years later, in 2020, the respondents applied to the trial

Court, invoking Rule 10 Order 1 of CPC, to implead the original donee's

legal representatives as the defendants in the counterclaim. Through the

impugned order, dated 01/10/2019, the trial Court allowed that

application. Aggrieved, the petitioner, who is the original defendant in the

counterclaim, has filed this Writ Petition.

Arguments:

Petitioner:

7. Shri Coutinho, the learned counsel for the petitioner, has drawn

my attention to sub-rule 5 of Rule 10 of Order 1, CPC. According to him,

a party brought on record in a pending suit should be deemed to have

been added as a party from the date he had been served with the summons.

Only under exceptional circumstances can a party be brought on record as

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if he had been a party from the inception. Here, according to him, the

trial Court does not spell out whether the parties were brought on record

prospectively or otherwise.

8. Shri Coutinho has also pointed out that the respondents, in their

own words, came to know about the Gift Deed in 2011. Therefore, to seek

a declaration about that Deed, they had the cause of action then. But they

did not choose to implead the donee or, in his absence, his legal

representatives. Instead, they sought the relief of declaration against the

petitioner, who was not a party to that gift deed. Pointing to section 21 of