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Bombay High Court

VAKAS SAGAR DONDversusMOZAKKIR SAGIR DOND AND ORS

Decided
Disposal
Dismissed

Holding

The petitioner is neither a necessary nor a proper party, and the order rejecting his impleadment application is upheld.

Summary

The petitioner, Vakas Sagir Dond, sought to be impleaded in a suit for perpetual injunction filed by his brother (Respondent No.1) to restrain Respondents Nos.2 and 3 from taking possession of Shop No.1. The petitioner claimed a rival right of occupation and alleged that the suit was collusive to prejudice his interests. The trial court rejected the impleadment application, finding no prima facie material showing the petitioner’s tenancy or any necessary jural relationship with the shop owner. On appeal, the High Court affirmed that the petitioner’s pleadings were silent on the capacity in which he claimed possession and that his inclusion would complicate the trial, rendering him neither a necessary nor a proper party. Consequently, the petition was dismissed, with the court directing the petitioner to pursue his remedies in a separate proceeding.

Issues considered

  • Whether the petitioner can be impleaded as a party‑Defendant in the suit for perpetual injunction.
  • Whether the petitioner has produced sufficient material to establish a tenancy or other legal interest in the suit shop.
  • Whether the petitioner is a necessary or proper party under the Civil Procedure Code.
  • Whether the trial court's order rejecting the impleadment application is legally sustainable.

Subjects

  • perpetual injunction
  • impleadment
  • necessary party
  • civil procedure
  • possession dispute
  • trial court discretion
  • separate proceeding

Judgment

                                                                               -WP-11544-2026.DOC



                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 11544 OF 2026


                      Vakas Sagir Dond                                             ..Petitioner
                            Versus
                      Mozakkir Sagir Dond and Ors                             …Respondents

                      Mr. Uzair Kazi, with Rohit Vaishya, i/b YMK Legal, for the Petitioner.

                                                   CORAM:         N. J. JAMADAR, J.
                                                   DATE :         8th SEPTEMBER 2026


                      ORDER:

                      1.    Heard Mr. Uzair Kazi, the learned Counsel for the Petitioner.

                      2.     The challenge in this Petition is to an order dated 5 th August

                      2026 passed by the learned Civil Judge, Bhiwandi, whereby an

                      Application preferred by he Petitioner-Third Party seeking impleadment

                      in RCS No. 286 of 2020 instituted by Respondent No.1 against
ARUN
RAMCHANDRA
SANKPAL               Respondent Nos. 2 and 3, came to be rejected.
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Date: 2026.09.09
                      3.    Respondent No.1 has instituted the suit for perpetual injunction
20:00:11 +0530




                      to restrain Respondent Nos. 2 and 3 from taking forcible possession of

                      Shop No. 1 in Municipal House No. 88/C, Teen Batti, Kolergate,

                      Bhiwandi (“the suit ship”), asserting that Respondent No.1 is a licencee

                      of the suit shop, which is owned by Respondent No.2, who is his father-

                      in-law. Respondent No.1 claimed that he has been conducting a milk


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                                                         -WP-11544-2026.DOC

product business under name and style of “Dond Dairy” in the suit shop

since 2006 and, in the year 2020, Respondent Nos. 2 and 3 threatened

and attempted to forcibly evict Respondent No.1 from the suit shop.

4.    After the evidence of third witness for the Plaintiff came to be

recorded, the Petitioner who claims to be the real brother of Respondent

No.1 filed the Application seeking impleadment in the suit asserting

inter alia, that there are disputes between the Petitioner and

Respondent No.1. In fact, the Petitioner is in the occupation of the suit

shop and the Petitioner has been conducting the business therein under

the name and style of “Dond Dairy”. Respondent No.1 has instituted a

collusive suit against Respondent Nos. 2 and 3 to cause prejudice to the

rights of the Petitioner qua the suit shop.

5.    By the impugned order, the learned Judge was persuaded to

reject the Application opining that, prima facie, there was no material to

show that the Petitioner was in the occupation of the suit shop as a

tenant thereof.

6.    Mr. Uzair Kazi, the learned Counsel for the Petitioner, submitted

that the learned Judge did not properly appreciate the nature of the

interest of the Petitioner in the suit shop and the documents which

evidence the occupation of the Petitioner over the suit shop.




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                                                            -WP-11544-2026.DOC

7.    Attention of the Court was invited to Udyam Registration and the

notice issued by the office of Food and Drug Administration, on 3 rd April

2024, in relation to the alleged violation of the Food Safety Rules.

8.    It is trite, addition of a party is not a matter of initial jurisdiction

but that of judicial discretion. In the case at hand, the Petitioner, in a

sense, lays a rival claim of possession over the suit shop. However, the

Application for impleadment is conspicuously silent about the capacity

in which the Petitioner allegedly possesses the suit shop. No jural

relationship between the Petitioner and the owner of the suit shop is

pleaded. The impleadment of the Petitioner as a party-Defendant would

embarrass the trial as it would entail a two-pronged adjudication. From

this standpoint, the Petitioner neither appears to be a necessary nor a

proper party to the suit.

9.    In the circumstances of the case, the view of the learned Civil

Judge that the Petitioner could not place on record material of sterling

quality to show possession over the suit shop cannot be said to be

unsustainable. In any event, the Petitioner is not remediless. The

Petitioner can workout his remedies in an independent proceeding.

10.   The Petition thus stands dismissed.



                                              [N. J. JAMADAR, J.]




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