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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