Bombay High Court
RAMCHANDRA PANDHARINATH HARPALE AND ORSversusMANJARI PROJECTS PRIVATE LIMITED AND ANR
- Decided
- Disposal
- Allowed
Holding
A party cannot be added as a co‑plaintiff under Order I Rule 10 of the CPC when the deed of assignment was executed prior to the filing of the suit; such addition is only permissible under Order XXII Rule 10 for assignments pendente lite.
Summary
The petitioners, original defendants, challenged a lower court order that allowed a third party to be added as a co-plaintiff in a suit for specific performance concerning a development agreement. The original plaintiff had assigned its rights to the third party before filing the suit, and the defendants argued that this pre‑filing assignment could not justify impleadment under Order I Rule 10 of the CPC. The court examined the scope of Order I Rule 10, which permits addition of a party only when the suit is instituted in the name of the wrong plaintiff or a bona‑fide mistake is shown, and contrasted it with Order XXII Rule 10, which deals with assignments pendente lite. Relying on Supreme Court precedents, the court held that a prior assignment does not fall within Order I Rule 10 and that the third party could at most file a separate suit. Consequently, the order allowing the third party’s impleadment was set aside and the writ petition was allowed.
Issues considered
- Can a third party whose rights were assigned prior to the filing of a suit be added as a co‑plaintiff under Order I Rule 10 of the CPC?
- Does Order XXII Rule 10 of the CPC apply to assignments that occurred before the suit was instituted?
- Will the addition of the third party as a co‑plaintiff prejudice the defendants' rights?
Legislation cited
- Code of Civil Procedure, 1908 — s. Order I Rule 10, Order XXII Rule 10
- Indian Limitation Act, 1877 — s. Section 22
Subjects
- assignment
- specific performance
- impleadment
- co‑plaintiff
- Order I Rule 10
- Order XXII Rule 10
- limitation
- civil procedure
Judgment
901-WP-1227-2015.docx
Swapnil IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1227 OF 2015
1. Savita Arun Zambre
Age 43 Yrs, Occ : Household,
R/o. Manjari Farm, Zhambare vasti,
Tal. Haveli, Dist. Pune.
2. Ms. Sadhana Walmiki Gole
Age 36 Yrs, Occ :Household,
R/o. Manjari Farm, More Vasti,
Tal. Haveli, Dist. Pune.
3. Babita Sunil Harpale
Age 40 Yrs, Occ : Household,
R/o. Manjari Farm, More Vasti,
Tal. Haveli, Dist. Pune.
4. Master Abhinav Sunil Harpale
Age 14 Yrs Minor, Occ : Education,
Minor through his natural guardian
mother petitioner no.3.
R/o. Manjari Farm, More Vasti,
Tal. Haveli, Dist. Pune. ...Petitioners
(Org. Defendants)
VERSUS
1. Manjari Projects Private Limited
A company registered under the
Digitally signed
by SWAPNIL
provisions of Indian Companies
SWAPNIL BHASKAR
JADHAV
BHASKAR Date:
JADHAV 2026.08.20 1/18
15:05:39
+0530
901-WP-1227-2015.docx
Act, 1965 having it office at
Krishnadeep Manjri Farm Solapur
Road, Pune 411007.
2. Maland Projects (I) Pvt. Ltd.
A company registered under
the provisions of Indian Companies
Act, 1413, Kumar Capital, East Street,
Camp, Pune 411001 ...Respondents
(Respondent No.1- Org. Plaintiff)
(Respondent No.2 – Third party applicant)
Mr. Drupad Patil a/w. Ms. Srushti Chalke for the petitioners.
Mr. Rohan Savant a/w. Mr. Vinayak Chitale i/b. Parinam Law
Associates for the respondents.
CORAM : GAURI GODSE, J.
RESERVED ON: 7th MAY 2026
PRONOUNCED ON: 20th AUGUST 2026
JUDGMENT:
1. This writ petition is filed by the original defendants to
challenge the order dated 15 th March 2014 passed below
Exhibit 137, thereby allowing the application filed by the third
party to be added as co-plaintiff no. 2. Respondent no. 1 is
the original plaintiff and respondent no.2 is the third party
who is permitted to be added as a co-plaintiff.
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2. Respondent no.1 has filed the suit for specific
performance of the agreement dated 15 th December 2006
and the supplementary agreement dated 22 nd August 2007
executed by the petitioners in favour of respondent no.1, i.e.
the original plaintiff. The suit also challenges the notice dated
17th April 2009 terminating both the agreements. In this suit,
the petitioners filed an application at Exhibit ‘130’ for
amendment to the written statement to bring on record the
assignment in favour of the third party. The said application
was filed after the petitioners learnt that the plaintiff had
already assigned its rights to a third party before filing the
suit. The original plaintiff had filed an application at Exhibit
‘133’ for leave to amend the plaint to add the third party as
the party plaintiff and amend the plaint for seeking specific
performance also in favour of the third party.
3. The plaintiff’s application at Exhibit ‘133’, the
defendants’ (petitioners’) application at Exhibit ‘130’ and the
third-party application at Exhibit 137 were decided by
separate orders on the same day. The learned judge
recorded reasons for deciding all the applications in the
Order below Exhibit ‘133’. The rejection of the plaintiff’s
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application at Exhibit ‘133’ and the order allowing the
defendants’ application at Exhibit ‘130’ are not challenged.
Since the third-party application is allowed, the defendants
have filed this writ petition.
4. Learned counsel for the petitioners submitted that the
application of the third party under Order I Rule 10 of the
Civil Procedure Code, 1908 (“CPC”) is on the ground that the
original plaintiff's rights are assigned to the third party.
However, the deed of assignment is prior to the filing of the
suit. He submitted that the registered development
agreement and the power of attorney executed by petitioner
no.1 in favour of the plaintiff are dated 15 th December 2006.
The original plaintiff executed the registered deed of
assignment dated 27th July 2007, thereby assigning its rights
to the third party, i.e. respondent no. 2. This deed of
assignment was executed without any intimation to the
defendants; thus, unknown about the deed of assignment,
the supplementary agreement was executed by the
defendants in favour of the original plaintiff, by which a
certain amount towards the consideration was agreed to be
paid to the defendants. Due to non-compliance with the
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obligations under the agreements, the defendants terminated
the development agreement and the power of attorney by
issuing a notice dated 17 th April 2009. The original plaintiff
immediately filed suit challenging the termination notice and
seeking specific performance and, in the alternative,
compensation.
5. Learned counsel for the petitioners submitted that in
the written statement, the petitioners raised a specific
contention that the plaintiff was not entitled to maintain the
suit, as it is already divested of its right in view of the deed of
assignment executed in favour of the third party. The trial
court had allowed the application for temporary injunction on
20th April 2010, granting an injunction against the petitioners.
The order was carried over in this court, and the parties were
directed to maintain the status quo. Learned counsel for the
petitioners, therefore, submits that only to prolong the suit
and defeat the rights pleaded by the defendants for
termination of the agreement, the third party is sought to be
included in the suit. He submits that if the third party has
independent rights under the deed of assignment, a separate
suit can always be filed. However, to avoid the limitation bar,
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the backdoor method is adopted to implead the third-party
assignee as a co-plaintiff.
6. Learned counsel for the petitioners submits that the
assignee during the pendency of the suit can be added as a
party on the ground of assignment in view of Order XXII Rule
10 of the CPC. However, the third-party application is filed
under Order I Rule 10 of the CPC on the ground that it is a
necessary and proper party. He submits that the grounds to
add a party are only based on the deed of assignment. Since
the deed of assignment is prior to the date of filing of the suit,
the same cannot be a ground to add the party by taking
recourse to Order I Rule 10 of the CPC.
7. Learned counsel for the petitioners submits that the
trial court has completely ignored that the deed of
assignment executed prior to the date of filing of the suit
cannot be a valid ground for seeking impleadment under
Order I Rule 10 of the CPC. Learned counsel for the
petitioners, therefore, submits that the impugned order
warrants interference by this Court. To support his
submissions, learned counsel for the petitioners relied upon
the decision of the Apex Court in Life Insurance Corporation
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of India Vs. Sanjeev Builders Private Limited and Anr 1. In the
said decision, the plaintiff had objected to the impleadment of
the third party as a plaintiff. The Apex Court held that in a suit
for specific performance, an application for impleadment has
to be filed within a reasonable time. Learned counsel for the
petitioners submitted that the Apex Court has summarised
the legal principles on the question of impleadment of a party
in a suit for specific performance. The Apex Court held that a
necessary party is a person who ought to be joined as a
party to the suit, in whose absence the suit cannot be
decided. It is further held that the proper party would be a
person whose presence would enable the court to
completely, effectively, and properly adjudicate upon all the
matters in issue. The issue regarding enabling provisions
under Order XXII Rule 10 of the CPC concerns the
continuance of the suit on the ground of assignment,
creation, or devolution pendente lite. Hence, the third party
would not be entitled to be added as a party on the ground of
a deed of assignment executed prior to the filing of the suit.
8. Learned counsel for the petitioners submitted that in
1 (2022) 16 SCC 1
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the present case, the third party has prayed for impleadment
on the ground of a deed of assignment executed before filing
of the suit. The suit is to challenge the termination of the
development agreement in favour of the original plaintiff. If
the defendants succeed and the termination is upheld, the
deed of assignment executed pursuant to the terminated
development agreement would not confer any right on the
third party. Hence, to defeat the rights and contentions of the
defendants in the suit that was filed after the deed of
assignment in favour of the third party, the present
application is filed. In view of the delay in deciding the suit,
the defendants are suffering hardships due to the interim
protection directing the parties to maintain the status quo.
9. Learned counsel for the respondents supported the
impugned order. He submits that the apprehension
expressed by the plaintiff would ultimately pertain to the bar
of limitation. By the impugned order, the plaintiff’s application
for amendment of the plaint is rejected, and only
impleadment of the third party is allowed. Hence, there is no
prejudice to the defendants. The bar of limitation is kept open
by the trial court. Hence, no prejudice is caused to the
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defendants in view of the impugned order. To support his
submissions, learned counsel for the respondents relied
upon the decision of the Apex Court in Robin Ramjibhai
Patel Vs. Anandibai Rama Alias Rajaram Pawar and Ors 2
and Life Insurance Corporation of India . He submitted that
the subsequent transferee can be added as the party, with
the plaintiff, who is dominus litis, having no objection. In the
present case, the plaintiff has no objection to the third party
being added as a co-plaintiff. Hence, in view of the well-
settled legal principles, no prejudice would be caused to the
defendants if the third party is added as a co-plaintiff.
10. Learned counsel for the respondents also relied upon
the decision of the Apex Court in Mumbai International
Airport Private Limited Vs. Regency Convention Centre and
Hotels Private Limited and Ors 3. He submits that the Apex
Court has carved out the legal principles governing
impleadment of a party as plaintiff. He submits that in view of
the rights assigned in favour of the third party, it would be
entitled to proceed with the suit to challenge the termination
of the original agreement. Learned counsel for the
2 (2018) 15 SCC 614
3 (2010) 7 SCC 417
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respondents also relied upon the decision of this court in
State Trading Corporation of India Ltd -In the matter of-
Standard Chartered Bank Vs. ICICI Lombard General
Insurance Company Ltd4. He submits that this court has
taken a view that a party who claims through the plaintiff has
a right to enforce his rights and can be joined as co-plaintiff.
11. I have carefully perused all the papers. There is no
dispute that the third party’s deed of assignment is prior to
the filing of the suit. The defendants allege that the third party
is a sister concern of the original plaintiff. Hence, according
to the defendants, only to defeat the rights created in favour
of the defendants, an application for impleadment is filed by
the third party. It is pertinent to note that, in the trial court, the
third party had appeared through a separate advocate.
However, in the present writ petition, both the parties are
represented through the same advocate. This supports the
petitioners' contentions that the third party, being a sister
concern of the original plaintiff, has applied for impleadment
to defeat the rights created in favour of the defendants.
12. The defendants filed an application at Exhibit 130 on
4 2015 SCC OnLine Bom 6272
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19th November 2013. Thereafter, on 29 th November 2013, the
plaintiff filed a reply to Exhibit 130 and also the application at
Exhibit 133. Thereafter, on 15 th January 2014, the third party
filed the application at Exhibit 137 under Order I Rule 10 of
the Code of Civil Procedure. In reply to the said application,
the defendants contended that, as the assignment was prior
in time, the plaintiff had already divested its rights in favour of
the third party. Hence, the suit would not be maintainable.
The reasons in the impugned order pertain to the right of a
party to be added in view of the assignment of rights during
the pendency of the suit.
13. The trial court has not addressed the scope of Order I
Rule 10 for adding the third party as a co-plaintiff, when the
deed of assignment in favour of the third party is admittedly
prior to the date of filing of the suit. In the terms and
conditions of the development agreement in favour of the
original plaintiff, there is a provision to assign the rights to a
third party. The plaintiff, by exercising the said right, has
divested itself of all the rights by transferring the rights under
the development agreement and the power of attorney in
favour of the third party. It is not even the case of the plaintiff
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that such assignment was intimated to the defendants, who
are the original owners. Hence, in a suit challenging the
termination of the agreement and the power of attorney, the
defendants raised an objection that the plaintiff would not be
entitled to any relief, as it had divested its rights in favour of
the third party. Thus, there would not be any question of
deciding the claim of the third party by relying upon the
provision of Order XXII Rule 10 of the CPC. So far as Order I
Rule 10 is concerned, the scope to add a third party as co-
plaintiff must satisfy the requirements as contemplated under
Order I Rule 10 of the CPC, which reads as under :-
“10. Suit in name of wrong plaintiff.—(1) Where a
suit has been instituted in the name of the wrong
person as plaintiff or where it is doubtful whether it
has been instituted in the name of the right plaintiff,
the Court may at any stage of the suit, if satisfied
that the suit has been instituted through a bona fide
mistake, and that it is necessary for the
determination of the real matter in dispute so to do,
order any other person to be substituted or added
as plaintiff upon such terms as the Court thinks
just.
(2) Court may strike out or add parties.—The
Court may at any stage of the proceedings, either
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upon or without the application of either party, and
on such terms as may appear to the Court to be
just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck
out, and that the name of any person who ought to
have been joined, whether as plaintiff or defendant,
or whose presence before the Court may be
necessary in order to enable the Court effectually
and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a
plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be
amended.—Where a defendant is added, the plaint
shall, unless the Court otherwise directs, be
amended in such manner as may be necessary,
and amended copies of the summons and of the
plaint shall be served on the new defendant and, if
the Court thinks fit, on the original defendant
(5) Subject to the provisions of the 1 [Indian
Limitation Act, 1877 (XV of 1877)], section 22, the
proceedings as against any person added as
defendant shall be deemed to have begun only on
the service of the summons.”
14. Order I of Rule 10 grants power to the court to add a
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party as plaintiff when it is found that the suit is instituted in
the name of the wrong person through a bona fide mistake
and that, to determine the real matter of the dispute, it is
necessary to substitute or add the name of the plaintiff. In the
present case, no such bona fide mistake has been pleaded
for adding a third party as a co-plaintiff. Sub-rule (2) of Rule
10 of Order I empowers the court to strike out or add a party.
The said sub-rule provides that a party can be added if it
appears to the court to be just and proper to add a party for a
factual and complete adjudication upon and settlement of all
the questions involved in the suit. Thus, the assignment in
favour of the third party cannot be a ground to add the party
as a co-plaintiff by relying upon Order I Rule 10, as the
assignment is prior to the date of filing of the suit.
15. Contingencies regarding the assignment of rights
pendente lite are covered under Order XXII Rule 10 of the
CPC. However, such a contingency did not arise in the
present case. Hence, the only consideration is whether the
prayer to add the third party as a co-plaintiff falls within the
scope and reasons provided under Order I Rule 10 of the
CPC.
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16. In the Apex Court’s decision in Robin Patel relied upon
by the learned counsel for the respondents, there were rival
claims against the same vendor. In the present case, the said
principles would not apply as the third party is claiming
through the plaintiff in whose favour there was a
development agreement. In Life Insurance Corporation of
India, the consideration was pertaining to a claim for specific
performance. Hence, it was held that the impleadment can
be allowed for the proper adjudication of the dispute when
the rights have been assigned during the pendency of the
suit. In Mumbai International Airport Private Limited, an
assignee was added as co-plaintiff in view of Order XXII Rule
10 of the CPC. The Apex Court held that if the court found
that the addition of the party would alter the nature of the suit
or create a new cause of action, it may be dismissed. Even if
it is found to be a proper party, it may be dismissed if it does
not wish to broaden the scope of specific performance in the
suit. It is further held that the court may otherwise direct such
applicant (third party) to be impleaded as a party either
unconditionally or subject to the terms.
17. In the present case, the impleadment would defeat the
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defendants' rights, as they contend that, in view of the
plaintiff’s rights being divested in favour of the third party, the
suit would not be maintainable. Hence, in view of the
aforesaid legal principles, the third party’s claim to be added
as co-plaintiff would not fall within the scope of Order I, Rule
10 of the CPC. The decision of this court in State Trading
Corporation of India Ltd. dealt with an assignment by way of
consent terms signed before the Debt Recovery Tribunal
(“DRT”) during the pendency of the suit. Hence, the
conclusion recorded in the said decision would not apply in
the present case where, admittedly, the deed of assignment
in favour of the third party is prior to the filing of the suit.
Hence, at most, the third party may be entitled to file its own
suit, and it cannot be permitted to be added as a co-plaintiff,
which would prejudice the rights created in favour of the
defendants.
18. In view of the divesting of the rights by the original
plaintiff before filing the suit, the defendants are entitled to
oppose the grant of the relief claimed in the suit. It is
pertinent to note that the plaintiff’s application to amend the
plaint to seek relief of specific performance in favour of the
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third party is dismissed by the trial court. The trial court held
that the plaintiff has not given any satisfactory explanation
regarding concealing the fact of assignment in favour of the
third party. The trial judge further held that the third party had
purchased the litigation and therefore had stepped into the
shoes of the plaintiff. Hence, the third party is deemed a
necessary party. This reason is erroneous, inasmuch as the
plaintiff had already assigned its right before filing the suit;
hence, there is no question of purchasing the litigation or
stepping into the shoes of the plaintiff.
19. Thus, it is clear that the application by the third party is
filed only to defeat the defence. The defendants are entitled
to oppose the prayer seeking cancellation of the termination
of the development agreement and the prayer for specific
performance on the ground that the assignment would divest
the plaintiff of its rights. Thus, in view of the serious prejudice
that would be caused to the defendants, the impugned order
allowing the impleadment as the co-plaintiff without recording
any valid reasons would warrant interference.
20. Hence, the Writ Petition is allowed by passing the
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following order:
a) The order dated 15th March 2014 passed below Exhibit
137 in Special Civil Suit No. 1463 of 2009 is quashed
and set aside. The application at Exhibit 137 is
dismissed.
b) This order will not preclude respondent no. 2 from filing
a separate suit, subject to all just objections by the
proposed defendants.
[GAURI GODSE, J.]
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