Created by Fuzzy Cloud

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

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
                                                 …
                                           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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.