Case Note & Summary
The present application was filed by two applicants, Khalil Haji Bholumiya Salar and Bilkis Mehboobsaheb Mujawar, seeking impleadment in First Appeal No. 21 of 2005 pending before the Bombay High Court. The appeal arises from a suit filed by the original plaintiffs (Zaitunbi and Shamin Allati) against the original defendants (Parveen, Nazir, and Rahima) concerning property rights. The applicants claim to be in possession of the suit property and have filed a separate suit (Special Civil Suit No. 7 of 2008) seeking a declaration of ownership by adverse possession. They argued that their rights would be directly affected by the outcome of the appeal and that they should be heard before any final decree is passed. The respondents (original plaintiffs) did not appear, while the respondent no.2 (original defendant) opposed the application, contending that the applicants were not necessary parties and that their impleadment would delay the proceedings. The court, after hearing arguments, allowed the application, holding that the applicants, who claim independent title and possession, are proper parties under Order 1 Rule 10 CPC. The court emphasized that their presence is necessary for a complete and effective adjudication of the dispute and that they have a right to be heard before any order affecting their claimed rights is passed. The court directed that the applicants be impleaded as respondents in the appeal and that the appeal be heard on merits.
Headnote
A) Civil Procedure Code - Impleadment of Third Party - Order 1 Rule 10 CPC - Necessary and Proper Party - Applicants claiming possessory rights and adverse possession over suit property sought impleadment in pending appeal - Court held that since applicants claim independent title and possession, their presence is necessary for complete and effective adjudication of the dispute - Held that applicants have a right to be heard before any final decree is passed affecting their claimed rights (Paras 1-10).
Issue of Consideration
Whether the applicants, who claim to be in possession of the suit property and have filed a separate suit for declaration of ownership by adverse possession, are necessary or proper parties to the pending appeal and should be impleaded under Order 1 Rule 10 CPC.
Final Decision
The court allowed the application, directing that the applicants be impleaded as respondents in First Appeal No. 21 of 2005. The appeal is to be heard on merits after impleadment.
Law Points
- Order 1 Rule 10 CPC
- Impleadment of third party
- Adverse possession
- Right to be heard
- Property dispute
Case Details
2012 LawText (BOM) (08) 66
Civil Application No. 4684 of 2009 in First Appeal No. 21 of 2005
Mr. G.S. Godbole i/by. Mr. Sidharth Ranghe for applicants; Mr. Z.A. Jariwala i/by. M/s. Thakore Jariwalla & Associates for respondent no.2
Khalil Haji Bholumiya Salar and Bilkis Mehboobsaheb Mujawar
Zaitunbi w/o. Md. Hanif Karigar (since deceased by heir, appellant no.2 herein), Shamin w/o. Noorul Hasan Allati, Parveen w/o. Sayyeduddin Razak, Nazir s/o. Md. Hanif Karigar, Rahima w/o. Abusayyed Munshi
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Nature of Litigation
Civil application for impleadment in a pending first appeal arising from a property suit.
Remedy Sought
Applicants sought to be impleaded as parties in First Appeal No. 21 of 2005 to protect their claimed rights over the suit property.
Filing Reason
Applicants claim to be in possession of the suit property and have filed a separate suit for declaration of ownership by adverse possession; they fear that the appeal decision may affect their rights without hearing them.
Issues
Whether the applicants are necessary or proper parties to the appeal under Order 1 Rule 10 CPC.
Whether the applicants' claim of adverse possession gives them a right to be heard in the pending appeal.
Submissions/Arguments
Applicants argued that they are in possession of the suit property and have filed a separate suit for declaration of ownership by adverse possession; their rights would be directly affected by the outcome of the appeal.
Respondent no.2 (original defendant) opposed the application, contending that the applicants are not necessary parties and their impleadment would delay the proceedings.
Ratio Decidendi
A person claiming independent title and possession over the suit property is a proper party under Order 1 Rule 10 CPC, as their presence is necessary for complete and effective adjudication of the dispute. Such a person has a right to be heard before any final decree is passed affecting their claimed rights.
Judgment Excerpts
The applicants claim to be in possession of the suit property and have filed a separate suit for declaration of ownership by adverse possession.
Their presence is necessary for complete and effective adjudication of the dispute.
They have a right to be heard before any final decree is passed affecting their claimed rights.
Procedural History
The original plaintiffs filed a suit (Special Civil Suit No. 7 of 2008) which led to First Appeal No. 21 of 2005. During the pendency of the appeal, the applicants filed Civil Application No. 4684 of 2009 seeking impleadment. The application was heard and allowed on 7 August 2012.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 1 Rule 10
