Bombay High Court

LOKYABAI SAMBHAJI PAWARversusMEERABAI SHRIRAM PAWAR AND OTHERS

Disposal: DISPOSED OFF
Bench: SHAILESH P BRAHME

Holding

A third person who is not a party to the suit and against whom no cause of action exists cannot be deemed a necessary party, rendering the order allowing his impleadment unsustainable.

Summary

Lokyabai Pawar filed a civil suit seeking possession and injunction over land, alleging encroachment by defendants Meerabai and others. The husband of defendant Meerabai, Shriram, applied under Order 1 Rule 10 of the CPC to be impleaded as a necessary party, claiming possession of the land, and the trial court allowed this application while rejecting a request to call police diary records. The petitioner challenged the order impleading the third party, arguing she had no cause of action against him and that she was the dominus litis. The High Court held that without a specific grievance or cause of action, the third person could not be deemed a necessary party and quashed the order allowing his impleadment. It also upheld the trial court’s refusal to produce the police records, dismissing the second writ petition.

Issues considered

Whether the husband of a defendant is a necessary party to be impleaded under Order 1 Rule 10 CPC in a possession suit.
Whether the trial court erred in rejecting the application to call for police diary records.

Legislation cited

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

Subjects

possession
injunction
necessary party
impleadment
CPC Order 1 Rule 10
civil suit
third party
writ petition
quash
police diary records

Judgment

2026:BHC-AUG:11167
88 WP 4128 22+.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

88 WRIT PETITION NO. 4128 OF 2022

LOKYABAI SAMBHAJI PAWAR
VERSUS
MEERABAI SHRIRAM PAWAR AND OTHERS
...
Advocate for the Petitioner : Mr. Shaikh Tarek Mobin H.
Advocate for Respondent nos. 1 & 3 : Mr. G.R. Syed
...
WITH
WRIT PETITION NO. 11603 OF 2022

MEERABAI SHRIRAM PAWAR AND ANOTHER
VERSUS
LOKYABAI SAMBHAJI PAWAR AND ANOTHER
…
Advocate for Petitioners : Mr. G.R.Syed
Advocate for Respondent No. 1 : Mr.Shaikh Tarek Mobin H.
...
CORAM : SHAILESH P. BRAHME, J.

DATE : 09.03.2026

PER COURT :

Heard both sides.

2. Writ Petition No. 4128/2022 is preferred against the order
impleading third party vide passed below Exh. 21 on 17.12.2021 in Regular
Civil Suit No. 41/2021. Writ Petition No. 11603/2022 is preferred against
rejection of application Exh. 44 refusing to call for record and proceedings
from the concerned police station.

2. Petitioner Lokyabai Pawar has filed Regular Civil Suit No, 41/2021 for
possession and injunction in respect of land Gat No. 156. She is stated to be
in possession of part of the suit land and remaining part is in possession of

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88 WP 4128 22+.odt

near about nine persons, which is stated in paragraph no. 3 of the plaint. In
that list names of defendant nos. 1 and 2 are appearing. Her grievance is
that they are obstructing her possession and they have encroached over 12-
Are of land.

3. Third person Mr. Shriram, who happened to be husband of defendant
no. 1-Meerabai, has preferred application Exh. 21 under Order 1 Rule 10 of
CPC contending that he is necessary party because he is in possession of
the land. In his application it is contended that he is a necessary party but he
is not impleaded in the suit. It is further contended that application was
made by plaintiff’s son to police station Naygaon on 22.06.2020 indicating
that they did not cultivate the suit land.

4. Simultaneously, defendant no. 1 submitted application Exh. 44 for
calling record and proceedings in respect of station diary entry No. 10 from
the concerned police station. Application Exh. 21 was allowed and the
application Exh. 44 was rejected.

5. It is trite law that plaintiff is the dominus litis. The grievance of the
plaintiff and cause of action is to the extent of encroachment made by
defendant no. 1 to the extent of 07-Are and defendant no. 2 to the extent of
05 Are despite knowledge that third party is the husband of defendant no. 1.
He has not been impleaded in the suit. My attention is adverted to 7x12
extract which does not reflect the name of third party. No relief is solicited
against the third party. Therefore, no case is made out that he is a necessary
party. Finding recorded by the Trial Court that to avoid the complication he
is required to be included as a party is perverse. In the absence of any cause
of action and grievance, third party cannot participate in the proceeding. It
is not the case of either party that adjudication of the controversy is
impossible unless the third party is impleaded. I find that order below exh.
21 is unsustainable.

6. It reveals that the parties are armed with the certified copies of the
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88 WP 4128 22+.odt

document and entry of the police station diary. There is no necessity to call
for entire record and proceedings or the relevant documents at this stage of
the proceeding. The view taken by the Trial Court in rejecting the
application Exh. 44 cannot be faulted.

7. Writ Petition No. 4128/2022 is allowed and impugned order is
quashed and set aside. Needless to mention that it would be open for the
plaintiff to defend or save the suit if the Trial Court comes to the conclusion
that the concerned third party was necessary party but not implead.

8. Writ Petition No. 11603/2022 is dismissed.

( SHAILESH P. BRAHME, J.)

mkd/-

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