BALU SHANKARRAO PATODEversusNARAYAN MARUTI WATTAMWAR AND ANOTHER

2026:BHC-AUG:38511
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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                906 WRIT PETITION NO. 12717 OF 2025

                                      Balu Shankarrao Patode
                                               VERSUS
                              Narayan Maruti Wattamwar And Another
                                                  ...
             Tungar Nikhilesh K. for the Petitioner.
             Mr. P.G. Rodge for Respondent No.1.
             Mr.Sharad Vijay Natu for Respondent No.2.
                                                  ...

                                      CORAM           : MANJUSHA DESHPANDE, J.
                                      DATE            : 21.08.2026

             PER COURT :


             1.              The Petitioner is assailing the order passed by the Joint Civil

             Judge Senior Division, Udgir on 25th August, 2025, passed below Exhibit-

             35 in Special Civil Suit No.57 of 2024. The learned Civil Judge Senior

             Division has allowed the application for impleadment of Respondent No.2

             herein as party to the suit filed by the present Petitioner. The present

             Petitioner is the original Plaintiff in Special Civil Suit No.57 of 2024 and

             Respondent No.1 is the sole original defendant in the said suit. The suit is

             filed by the Petitioner for specific performance of contract in respect of

             the property situated at Udgir in Sarvodaya Co-operative housing Society,

             Udgir bearing Municipal House No.3/3/230 (Old), 3-3-1057 (New)

             bearing Plot No.7.



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2.            The learned Advocate for the Petitioner, Mr.Tungar submits

that the defendant was the owner and possessor of the above-mentioned

property. Since he was in need of money for his business he expressed his

willingness to sale out the said property. Therefore, after preliminary

talks between the parties, a notary registered agreement to sale was

executed on 5th April, 2024. It was agreed that the property is to be sold

for total consideration of Rs.1,60,01,000/-. The Plaintiff paid Rs.51,000/-

as an earnest amount and thereafter also paid Rs.10,50,000/- vide

cheque no.000137 dated 6th April, 2024 in presence of witnesses, for

which the defendant has issued receipt. It is claimed that possession of

the property was also handed over to the Plaintiff. On the very day, he

was also permitted to carry out construction. It was agreed that the

balance amount was to be paid at the time of execution of sale deed. The

entire transaction was to be completed within period of six months.

3.            It is submitted that even though the Plaintiff has requested

the defendant from time to time to accept the balance amount and

execute the sale deed, but defendant has avoided by one or the other

ground. As a result, the Plaintiff was constrained to issue legal notice and

accordingly the legal notice is issued through his Advocate on 15 th April,

2024. Although the defendant has replied the notice, he has failed to

execute the sale deed. As a result, the Plaintiff has filed Special Civil Suit

No.57 of 2024, which is pending before the Civil Judge Senior Division,

Udgir. The defendant that is Respondent No.1 appeared and filed his
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written statement and resisted the suit. In the written statement filed by

the defendant, it is stated that on 1 st June, 2001, the defendant had

agreed to sell the suit property to Respondent No.2 herein by executing

Isar Pavati and accordingly Respondent No.2 got electricity meter for the

suit property. The defendant claimed that the Plaintiff has prepared

forged documents and obtained signatures of the defendant. Since the

Respondent No.2 is not a party to the Special Civil Suit 57 of 2024,

therefore, he preferred an application below Exhibit-35 and Order 1, Rule

10 of the Civil Procedure Code (for short ‘CPC’), seeking direction

directions against the Plaintiff to add Respondent No.2 as a party

defendant. It was stated by the Respondent No.2 in the application, that

he has a prior claim over the said property, since the Respondent No.1

had already executed an agreement to sale of the suit property in favour

of Respondent No.2, herein accepting the earnest amount on 3 rd

November, 2001, and he was in possession of the property since last more

than 25 years. Therefore, he is in valid possession over the suit property.

It was also brought to the notice of the Court that then was some

litigation of the same property pending between the defendant and his

family members and in the civil suit having RCS No.159 of 2012, filed

before the Joint Civil Judge Senior Division, Udgir. In the written

statement the defendant has already admitted that the agreement

between himself and the Applicant. It was also stated that the Applicant

had filed one suit for specific performance of contract against the
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defendant before the Cooperative Court, Latur in Case No.172 of 2020

and the defendant has compromised with the Applicant and accordingly,

a decree has been passed on 28 th September, 2024 in the above case.

Therefore, the present suit for specific performance is based on the

subsequent transaction that has taken place. Accordingly, he is the

affected party as he has stepped into the shoes of the vendor by virtue of

the compromise that took place on 28th September 2024. As such, he is

necessary party to the suit. The application of Respondent No.2 herein

has been allowed vide order dated 25th August, 2025.

4.            It is the contention of the learned Advocate for the Petitioner

that Respondent No.2 herein is a stranger to the transaction between the

Petitioner and Respondent No.1 herein. He is a stranger to the

proceedings and the transaction between the Petitioner No.1, because the

relief claimed by the Petitioner is that of specific performance of contract

and, therefore, Respondent No.2 is a stranger and is not a necessary

party. He further submits that it is the prerogative of the Plaintiff and it is

his choice as to whom he should add as a party to the proceedings. In

support of his submissions, he would rely on the decision of the Hon’ble

Supreme Court in the case of Gurmit Singh Bhatia V/s. Krian Kant

Robinson and others, AIR 2019 SC 3577 , wherein it is held that third

party or a stranger cannot be added in a suit for specific performance

merely in order to find out who is in possession of the contracted

property or to avoid multiplicity of the the suits. It is further observed
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and held by this Court that a third party or a stranger to a contract

cannot be added so as to convert a suit of one character into a suit of

different character. It is his contention that the nature of suit would

change if the application for impleadment of Respondent No.2 is allowed.

5.            Per contra, the learned Advocate, Mr.Natu appearing for the

Applicant, present Respondent No.2 would submits that he has a prior

claim in the suit property, particularly in view of the fact that the

defendant has executed agreement to sale way back on 3 rd November,

2001, in favour of the Applicant after accepting the earnest amount,

towards the consideration, the Applicant has also taken possession of the

property. According to him, the learned Judge has rightly allowed the

application since it would lead to multiplicity of proceedings. He submits

that if the Respondent No.2 is not impleaded the decree that would be

passed in the suit for specific performance is inconsequential, since the

Petitioner would be again required to file a separate suit for delivering

possession. Therefore, in order to avoid multiplicity of proceedings and

also considering he has right to the suit property by way of agreement to

sale, which is executed prior to 25 years in the necessary party in the suit.

In support of his submissions, he relies on the Judgment in the case of

Sumatibai and others V/s. Paras Finance Co. regd. Partnership Firm Beawer

(Raj.) Throughg Mankanwar (Smt) W/o Parasmal Chorida (Dead) and Others,

(2007) 10 SCC 82, in which the case of Kasturi V/s. Iyyamperumal,

(2005) 6 SCC 733, which is the three Bench’s Judgment decision has
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been distinguished and it is held that “it cannot be laid down as a

absolute proposition that whenever the suit for specific performance is

filed by A against B, a third party C can never be impleaded in that suit.

In our opinion, if C can show a fair semblance of title or interest he can

certainly file an application for impleadment. To take contrary view

would lead to multiplicity of proceedings because then C will have to

wait until a decree is passed against B, and then file a suit for

cancellation of the decree on the ground that A had no title in the

property in dispute.” According to the learned Advocate, the situation

contemplated in the aforementioned Judgment squarely applies to the

facts fo the present case. Hence, accordingly to him, the order passed

below Exhibit-35 by the Joint Civil Judge Senior Division, Latur does not

deserve any interference.

6.              The    learned   Advocate,    Mr.Rodge,    who     appears       for

Respondent No.1 who is the defendant in the suit submits that in fact as

according to him he has not executed any agreement to sale either in

favour of the Petitioner or in favour of Respondent No.2 and he is still in

possession of the property.

7.              The Order 1, Rule 10 of the CPC is invoked in the present

case, which reads thus :

                    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
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              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
              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 [Indian
              Limitation Act, 1877 (15 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.


8.              So far as the present case is concerned, it would be governed

by Order 1, Rule 10(2) of the CPC, said provision, allows a party to file

an application at any stage of the proceedings, making a request to join

him as a party to the proceedings, who is a necessary party, but had not

been joined, so as to enable to the Court to effectively and completely

adjudicate upon, and settle all the question involved in the suit to be
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decided. Thus, it is left to the discretion of the Court to adjudicate

whether the person making the application is a necessary party for the

effective adjudication of the suit. In the present case, the suit is filed for

specific performance of contract to execute the sale deed in respect of the

property mentioned in title clause, which is also subject matter of the

proceedings initiated by Respondent No.2, in which there is compromise

arrived between Respondent Nos.1 and 2, herein on 28 th September,

2024. These proceedings were initiated much prior to the suit filed by the

Petitioner herein bearing RCS No.172 of 2020. Thus, it can not be said

that Respondent No.2 is a stranger to the suit. In fact the averments made

in the application shows that the agreement to sale in respect of the same

property of which the specific performance is sought in the suit has

already been executed by Respondent No.1 herein in the year 2001 itself

and there is a compromise arrived between the parties. Thus, Respondent

No.1 is not a stranger to the transaction which forms subject matter of

the suit for specific performance. In fact, for effectively deciding the suit,

the impleadment of the applicant is necessary. Even though, the

Petitioner has relied in the Judgment Gurmit Singh Bhatia (Supra),

wherein it has been laid down that so far as the suit was for specific

performance is concerned, if no relief is claimed against the third person,

the stranger to the transaction would change the nature of suit and is not

a necessary party. These observations were made in the context with the

facts that particular case, so far as the facts of the present case are
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concerned, the ratio in case of Sumtibai and Others (Supra), as cited by

the learned Advocate for Respondent No.2 is squarely applicable. More

particularly, Paragraph Nos.9 and 14, which read thus :

              9.     Learned counsel for the respondent relied on a
              three-Judge Bench decision of this Court in Kasturi v.
              Iyyamperumal¹. He has submitted that in this case it
              has been held that in a suit for specific performance of
              a contract for sale of property a stranger or a third
              party to the contract cannot be added as defendant in
              the suit. In our opinion, the aforesaid decision is
              clearly distinguishable. In our opinion, the aforesaid
              decision can only be understood to mean that a third
              party cannot be impleaded in a suit for specific
              performance if he has no semblance of title in the
              property in dispute Obviously, a busybody or
              interloper with no semblance of title cannot be
              impleaded in such a suit. That would unnecessarily
              protract or obstruct the proceedings in the suit.
              However, the aforesaid decision will have no
              application where a third party shows some
              semblance of title or interest in the property in
              dispute. In the present case, the registered sale deed
              dated 12-8-1960 by which the property was purchased
              shows that the shop in dispute was sold in favour of
              not only Kapoor Chand, but also his sons. Thus prima
              facie it appears that the purchaser of the property in
              dispute was not only Kapoor Chand but also his sons.
              Hence, it cannot be said that the sons of Kapoor
              Chand have no semblance of title and are mere
              busybodies or interlopers.

              14. In view of the aforesaid decisions we are of the
              opinion that Kasturi case is clearly distinguishable. In
              our opinion it cannot be laid down as an absolute
              proposition that whenever a suit for specific
              performance is filed by A against B, a third party C
              can never be impleaded in that suit. In our opinion, if
              C can show a fair semblance of title or interest he can
              certainly file an application for impleadment. To take
              a contrary view would lead to multiplicity of
              proceedings because then C will have to wait until a
              decree is passed against B, and then file a suit for
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              cancellation of the decree on the ground that A had
              no title in the property in dispute. Clearly, such a view
              cannot be countenanced.


9.              Since the Petitioner has a prior claim over the property, in

view of the agreement to sale over the said property, which is executed

25 years prior to filing a present suit, and the compromise entered with

Respondent No.1 about the subject matter of the suit, the learned Judge

has rightly allowed the application for impleadment and I do not find any

case for interference made out by the Petitioner.

10.             In view of the observations, Writ Petition is dismissed.




                                              [ MANJUSHA DESHPANDE, J. ]




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