Bombay High Court

M/S. YASH SHREE RELATORSversusSUKHRAM TRILOKI VARMA (DECEASED) THR.1.1)GOVIND VERMA AND ORS

Decided: 18 March 2026
Disposal: Allowed
Bench: JITENDRA SHANTILAL JAIN

Holding

The court allowed YSR to be joined as a party respondent while retaining respondents 1‑11, rejecting the fraud and bonafide mistake contentions as not before the court.

Summary

M/s. Yash Shree Realtors (YSR) filed an interim application seeking to be joined as a party respondent in First Appeal No. 206 of 2012, while retaining the original respondents 1‑11. The court noted a prior order (Interim Application No. 9018 of 2025) that had already permitted YSR's impleadment but retained those respondents. Opposing parties (respondents 16 and 17) alleged that the decree was obtained by fraud due to undisclosed death of parties and pre‑decree release deeds, invoking the Supreme Court’s decision in S.P. Chengalvaraya Naidu v. Jagannath. The court held that the fraud allegation was not before it, no application to set aside the decree existed, and the bonafide mistake provision of Order 1 Rule 10 CPC was inapplicable. Consequently, the court allowed the interim application, joining YSR as a respondent while keeping respondents 1‑11, and extended the same order to a related interim application (No. 9017 of 2025).

Issues considered

Whether YSR can be impleaded as a party respondent while retaining the original respondents 1‑11.
Whether the alleged fraud concerning undisclosed deaths and release deeds affects the present interim application.
Whether Order 1 Rule 10 of the CPC on bonafide mistake applies to the present application.
Whether the earlier order (Interim Application No. 9018 of 2025) governs the current application.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 1 Rule 10

Subjects

interim application
impleader
party addition
fraud allegation
Order 1 Rule 10 CPC
decree
bonafide mistake

Judgment

S. Bang 1 28.FA-206-2012.doc

Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SNEHA
SNEHA JAYPRAKASH CIVIL APPELLATE JURISDICTION
JAYPRAKASH BANG
BANG Date:
2026.03.23
17:42:41
+0530
INTERIM APPLICATION NO. 9019 OF 2025
IN
FIRST APPEAL NO. 206 OF 2012

M/s. Yash Shree Realtors ...Applicant

In the matter of

M. Satish Babu & Others …Appellants
(Orig. Defendant Nos. 3
to 9, 11 & 12)
VERSUS

Kannaiyalal Purshottamdas Shah & Others …Respondents
(Orig. Defendant Nos. 1,
2, 10 & 13)

WITH
INTERIM APPLICATION NO. 9017 OF 2025
IN
FIRST APPEAL NO. 251 OF 2012

M/s. Yash Shree Realtors ...Applicant

In the matter of

Sukhram Triloki Varma & Others …Appellants
(Orig. Defendant Nos.
9 to 25-A)
VERSUS

Kannaiyalal Purshottamdas Shah & Others …Respondents
(Orig. Defendant Nos.
1 to 8)
WITH
FIRST APPEAL NO. 2477 OF 2011

Sitabai Naik (Since Deceased) & Others ...Appellants

VERSUS

Kannaiyalal Purshottamdas Shah & Others ...Respondents
S. Bang 2 28.FA-206-2012.doc

__________________________________________________________________

Mr. Satyavan N. Vaishnav a/w. Ms. Nupur J. Mukherjee i/b. M/s. N.N.
Vaishnawa & Co. for the Applicants/ Org. Respondent Nos. 1 to 11 in
FA/2477/2011, FA/206/2012 & FA/251/2012.
Mr. Rohan Surve for Appellants in FA/206/2012.
Mr. Rajesh Kanojia i/b Mr. Akash Mangalgi for Respondent Nos. 16 & 17 in
FA/206/2012.
Mr. Ishan Agrawal a/w. Mr. Pradyumna Agrawal & Mr. Anshu Agrawal, Mr.
Ankit Rathod for Appellants in FA/2477/2011.
__________________________________________________________________

CORAM : JITENDRA JAIN, J.
DATED : 18th MARCH 2026

P. C. :

1. This application is filed by the proposed applicant M/s. Yash Shree
Realtors (YSR) for deleting respondent nos. 1 to 11 and to join the
applicant as a party respondent in the First Appeal No. 206 of 2012.

2. On 5th March, 2026, this court in Interim Application No. 9018 of
2025 in First Appeal No. 2477 of 2011 has passed an order permitting the
applicant YSR to be joined as a party respondent, but retaining respondent
nos. 1 to 11. Both these appeals relate to the same suit property. However,
the present Interim Application No. 9019 of 2025 was adjourned to
accommodate respondent nos. 16 and 17 and the appellants since their
counsel was not available on that day.

3. Mr. Vaishnav, learned counsel for the applicant and respondent nos. 1
to 11 has relied upon the order passed in Interim Application No. 9018 of
2025 on 5th March, 2026 and submitted that the application may be
allowed since the issue is now covered by the said order.

4. The learned counsel for respondent nos. 16 and 17 opposes and
S. Bang 3 28.FA-206-2012.doc

submits that the decree has been obtained by fraud since respondent no. 1
who had knowledge of death of various respondents and the transactions of
release deeds prior to the suit being decreed, did not take any steps to
inform the trial court. He submits that if the legal heirs of the deceased
were not brought on record, then the suit abates and therefore, a fraud is
played on the trial court in obtaining the decree. The learned counsel
brought to my attention various transactions prior to the suit being decreed
in this regard.

5. It is his submission that since these were the transactions prior to the
decree of suit and same having not been disclosed, there is a fraud and
relying upon the decision of the Hon’ble Supreme Court in the case of S.P.
Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs & Ors. 1
submitted that fraud vitiates everything and therefore the decree itself is
null.

6. The learned counsel for respondent nos. 16 and 17 further submitted
that the applicant-YSR is not affected and he can very well take fresh
proceedings with respect to the subject suit independently. He fairly
admitted that no reply has been filed to the present application by
respondent nos. 16 and 17 nor any application has been made for setting
aside the decree on the ground of fraud even after having acquired the
knowledge of death of various people and the transaction of release deeds.

7. The learned counsel for respondent nos. 16 and 17 relied upon Order
1, Rule 10 of Code of Civil Procedure, 1908 (CPC) and stated that no case is
made out for bonafide mistake and therefore, the present application is
required to be rejected.

1 (1994) 1 SCC 1
S. Bang 4 28.FA-206-2012.doc

8. The learned counsel for the appellants relied upon the reply filed to
this application and prayed for dismissal of the present application. In the
said application, the ground for delay and latches have been canvassed.
Furthermore, it is stated that no reason is provided to bring on record
various transactions executed between the year 2009 and 2012, though the
proceedings were carried on by respondent no. 1. The learned counsel
further submitted that the applicant has no locus in the present matter. The
registered release deeds executed, are also disputed in the affidavit in reply.

9. I have heard learned counsel for respondent nos. 16 and 17 and the
learned counsel for the appellants.

10. At the outset, it is not disputed by respondent nos. 16 and 17 that till
today no application has been made for setting aside the decree or
dismissal of the appeal on the ground of fraud, though the facts which he
has narrated came to his knowledge.

11. The argument that Order 1, Rule 10 of CPC speaks of bonafide
mistake and that, there is no such bonafide mistake considered by this court
in its order dated 5th March 2026, wherein it is stated while dealing with
the condonation that there was a bonafide belief, since the respondents and
the applicant were all family members. Same has been discussed in
paragraph 27 of the order. Paragraph 27 is again based on the same being
averred by the applicant in the civil application to show the bonafide belief
in paragraphs 13 to 17. Therefore, the contention of bonafide mistake is
rejected.

12. The contention that the transactions prior to the decree were not
brought to the notice of the trial court and therefore, there is a fraud
cannot be considered at this stage. The respondents and the appellants
S. Bang 5 28.FA-206-2012.doc

have not made any application for setting aside the decree or the dismissal
of the appeal on this ground till today. In any case, this court is considering
the application made by YSR whose transaction is post the suit being
decreed and even this issue has been considered by this court in its order
dated 5th March, 2026. The issue before me is whether to make applicant-
YSR a party respondent or not. There is no application before me for the
prayer that the decree has been obtained by fraud and/or the appeal should
be dismissed on that ground.

13. This court in its order dated 5 th March, 2026 has considered the issue
of fraud in paragraph 22. Merely making allegation of fraud is not enough,
but there has to be a specific averment to that effect. In this case,
respondent nos. 16 and 17 have not filed any reply. Therefore, this
allegation cannot be considered and in any case, the order dated 5 th March,
2026 has considered this issue.

14. The learned counsel for respondent nos. 16 and 17 and the
appellants have not made any attempt to distinguish the order passed on
5th March, 2026, whereby a similar application came to be allowed.

15. The contention of the appellants by relying upon the affidavit in reply
has been exhaustively considered by this court in its order dated 5 th March,
2026 and, therefore, for the reasons set out therein, the contention raised
by the appellants is not accepted.

16. For all the above reasons, Interim Application No. 9019 of 2025 is
allowed by permitting the applicant-YSR to be joined as party respondent,
but by retaining original respondent nos. 1 to 11. Amendment to be carried
out within 4 weeks in all the copies of all the parties, re-verification is
dispensed with.
S. Bang 6 28.FA-206-2012.doc

17. The parties agree that the order passed in Interim Application No.
9019 of 2025 would equally apply to Interim Application No. 9017 of 2025.

18. Therefore, for the reasons set out in my order disposing Interim
Application No. 9019 of 2025, the Interim Application No. 9017 of 2025 is
also disposed of with a direction that the amendments be carried out within
4 weeks by permitting impleadment of applicant-YSR as party respondent,
but by retaining original respondent nos. 1 to 11. Interim Application
No.9017 of 2025 is allowed in above terms.

19. This court today is not examining the issue of fraud since there is no
application before me. All the contentions of all the parties in this regard
are kept open.

20. Both Interim Applications are allowed, subject to payment of cost of
Rs. 25,000 /-. The cheque should be issued within 4 weeks in the name of
the advocate on record for the appellants.

21. List this matter on 22nd April, 2026 for further consideration.

[ JITENDRA JAIN, J. ]

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