Bombay High Court
ROQUE FREDDIE MENINO EXANO PEREIRA AND ANRversusPRIME BUILDERS AND 13 ORS
- Disposal
- Dismissed
Holding
The court may add a necessary party under Order I Rule 10(2) CPC even after trial commencement, and the petition challenging such addition is dismissed.
Summary
The petitioners challenged a Civil Judge's order permitting the plaintiff to add the plaintiff's wife as a defendant (defendant 8A) after the trial had commenced. The petitioners argued that the amendment was filed late, violating the proviso to Order VI Rule 17 of the CPC, and that the issue of non‑joinder of a necessary party had already been framed, giving them a vested right. The court examined whether the addition could instead be treated as an impleadment under Order I Rule 10(2) CPC, which allows the court to add necessary parties at any stage. Relying on Supreme Court precedents, the court held that the trial court was within its discretion to add the party under Order I Rule 10(2) despite the delay, though the plaintiff should bear costs for the untimely application. Consequently, the writ petition was dismissed and the plaintiff was ordered to pay costs to the petitioners.
Issues considered
- Whether the suit is bad for non‑joinder of a necessary party
- Whether amendment to add a party after commencement of trial is barred by the proviso to Order VI Rule 17 CPC
- Whether the court may add a necessary party under Order I Rule 10(2) CPC notwithstanding the delay
- Whether costs should be awarded for the plaintiff's delay in seeking impleadment
Legislation cited
- Code of Civil Procedure, 1908 — s. Order I Rule 10(2), Order VI Rule 17, Section 151
Subjects
- non‑joinder
- impleadment
- amendment of plaint
- Civil Procedure Code
- Order I Rule 10(2)
- Order VI Rule 17
- necessary party
- writ petition
- costs
Judgment
2026:BHC-GOA:1858
1 wp 509 of 2026.odt
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.509 OF 2026
ROQUE FREDDIE MENINO EXANO PEREIRA AND ANR
VERSUS
PRIME BUILDERS AND 13 OTHERS
…
Advocate for Petitioners : Mr. V R Amonkar
Advocate for Respondent no.1: Mr. Athnain Naik
Advocate for Respondent 2-14 : Mr. Shailesh Henriques
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Coram : S.G. Chapalgaonkar, J.
Date : 16th September, 2026.
...
FINAL ORDER :-
1. The petitioner impugns the order dated 29.04.2026
passed by learned Civil Judge S.D., B. Court, at Vasco, Goa in
Special Civil Suit No.18/2020/B, whereby respondent/plaintiff
is permitted to add the party to cause title of the suit.
2. The respondent no.1 instituted suit against petitioner
and respondent nos.2 to 14 for conveying 3/5th of undivided
share in respect of suit property in his favour contending that
in terms of memorandum of understanding (MOU) entered
into between himself and petitioner and some other persons, it
has been agreed to sell 3/5th share in the suit property in his
favour for total consideration of Rs.34,75,000/-. Petitioner
contested the suit by filing written statement denying case of
respondent no.1. The petitioner has raised a specific plea that
the suit is bad for non-joinder of necessary parties as wife of
defendant no.1 namely Mervia Genoveva Andrade is not made
2 wp 509 of 2026.odt
as a party. On 27.07.2024 Trial Court framed 7 issues. The
issue no.7 was framed “as to whether the suit is bad for non-
joinder of necessary parties”. The plaintiff tendered evidence
affidavit and while cross-examination was in progress,
application was filed under Order VI Rule 17 read with section
151 of Civil Procedure Code seeking amendment of plaint and
cause title, particularly, to add wife of defendant no.8 as
defendant no.8A in the title clause. The petitioner opposed.
However, Trial Court allowed the application by impugned
order dated 29.04.2026. Hence, this petition.
3. Mr. Amonkar, learned advocate appearing for petitioner
raised twofold objections to the impugned order. According to
him, proposed amendment is sought after commencement of
the trial without explanation for delay in bringing the
application. Hence, it would hit by proviso of Rule 17 of Order
VI of Civil Procedure Code. Secondly, on specific objection
raised by petitioner in written statement, issue no.7 has been
framed as to non-joinder of necessary party. As such, right has
been accrued in favour of the petitioner, which cannot be taken
away at this stage.
4. In support of his contentions, he relies upon the
observations of Hon’ble Supreme Court in case of
Ajendraprasadji N. Pandey and another Vs. Swami
3 wp 509 of 2026.odt
Keshavprakeshdasji N. and others reported in (2006) 12 SCC 1
and judgment of Punjab and Haryana High Court in case of
Naib Singh Vs. Harnek Mohd and Khair Din and others
reported in 2010 SCC online P & H 4262.
5. Per contra, Mr. Naik learned advocate appearing for
respondent no.1 and Mr.S.Henriques learned advocate
appearing for respondent nos.2 to 14 supports the impugned
order.
6. Mr. Naik relying upon observations of the Hon’ble
Supreme Court in case of Mumbai International Airport (P)
Ltd. Vs. Regency Convention Centre and Hotels (P) Ltd.,
reported in (2010) 7 Supreme Court Cases 417 would submit
that Court has discretion to add a person as a party if such
person is found to be necessary party or proper party in terms
of Order 1 Rule 10 (2) of the Civil Procedure Code. In the
present case, Trial Court directed addition of party, who was
necessary to effectively adjudicate the dispute between the
parties.
7. Having considered submissions advanced by learned
advocates appearing for respective parties, it cannot be
disputed that, petitioner has specifically raised objection in the
written statement regarding non-joinder of necessary party.
Eventually, issue no.7 was framed. Inspite of such objection,
4 wp 509 of 2026.odt
respondent no.1/plaintiff failed to take remedial measures till
commencement of the trial. The application Exhibit-61 seeking
impleadment of defendant no.8A was made after
commencement of trial at the stage when plaintiff was in the
witness box. In this backdrop, if application is treated to be
under Order VI Rule 17 of Civil Procedure Code, the proviso to
Rule 17 would come into picture and plaintiff would be under
obligation to make out case of due diligence for not having
raised matter before commencement of trial. However, perusal
of application Exhibit-61 clearly shows that application cannot
be strictly construed as an application for amendment, but it
will have to be construed as an application under Order I Rule
10 of Civil Procedure Code for impleadment of the party. The
Order 1 Rule 10(2) of Civil Procedure Code reads thus :-
10. Suit in name of wrong plaintiff :-
(1) …………….
(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.
5 wp 509 of 2026.odt
8. The aforesaid rule has been considered and elaborated
by the Supreme Court in case of Mumbai International Airport
Private Limited (supra) and it has been observed in paragraph
no.22, as under :-
“22. Let us consider the scope and ambit of Order
I of Rule 10(2) CPC regarding striking out or adding
parties. The said sub-rule is not about the right of a
non-party to be impleaded as a party, but about the
judicial discretion of the court to strike out or add
parties at any stage of a proceeding. The discretion
under the sub-rule can be exercised either suo moto
or on the application of the plaintiff or the
defendant, or on an application of a person who is
not a party to the suit. The court can strike out any
party who is improperly joined. The court can add
anyone as a plaintiff or as a defendant if it finds that
he is a necessary party or proper party. Such
deletion or addition can be without any conditions
or subject to such terms as the court deems fit to
impose. In exercising its judicial discretion under
Order 1 Rule 10(2) of the Code, the court will of
course act according to reason and fair play and not
according to whims and caprice.”
9. The aforesaid exposition of law clearly demonstrates that
the Court is empowered to direct impleadment of the party if it
finds that he is a necessary or proper party for effective
adjudication of the dispute in the suit.
10. In present case, petitioner himself pleaded in his written
statement that wife of defendant no.8 is necessary party and
her non-impleadment would amount to non-joinder of
necessary party. In this backdrop, exercise of jurisdiction by
Trial Court, may be on application filed by respondent
no.1/plaintiff, cannot be faulted thereby requiring interference
6 wp 509 of 2026.odt
of this Court under Article 227 of Constitutions of India. In
this backdrop, contention of petitioner that application could
not have been entertained in light of proviso to Rule 17 of
Order VI cannot be accepted or that would not be considered
an impediment for exercise of powers by Court under Order 1
Rule 10(2) of the Civil Procedure Code. However, in facts of
this case, petitioner ought to have been compensated for delay
in bringing amendment application. Respondent no.1 was
made aware of defect of non-joinder by specific plea in written
statement followed by framing of issues, but application
Exhibit-61 has been filed after 20 months when trial began in
suit. Hence, while rejecting writ petition, respondent/plaintiff
needs to be put on cost.
11. In result, Writ Petition stands dismissed. However,
respondent shall pay costs of Rs.5,000/- (Rs. Five Thousand) to
petitioner within a period of four (4) weeks, failing which
application Exhibit-61 shall be deemed to be rejected.
( S. G. CHAPALGAONKAR )
Judge
…
aaa/-
Signed by: TARI AMRUT NAGESH
Designation: Private Secretary
Date: 17/09/2026 14:53:27
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