SURESH VAMANRAO GAIKWAD Vs. KARVA DEVELOPERS

JUDGEMENT

(1.) Heard Mr. Limaye, learned counsel for the Petitioner, Mr. Kulkarni, learned counsel for Respondent No.1 and Ms. Joshi, learned counsel for Respondent Nos.2 to 5.

(2.) The present Writ Petition impugns order dtd. 11/1/2024 passed in Application filed below Exhibit-17 in Regular Civil Appeal No.448 of 2016 (for short 'RCA') by the Writ Petitioner - a third party, whose name is Suresh Waman Gaikwad seeking his impleadment as co- Appellant in the RCA as well as Defendant in the Suit proceeding which is decreed by the trial Court. Suit is originally instituted as Special Civil Suit No.121 of 1997 seeking specific performance of contract against Appellants in RCA by Respondents therein. For the sake of convenience parties shall be referred to as 'Plaintiff, Defendants and third Party (Petitioner before me)'. Suit is filed by Plaintiff in the year 1997, seeking specific performance of Agreement against Defendants, who are nomenclatured as Respondent Nos.2 to 5 before me in the Writ Petition, in respect of land admeasuring 8649 sq. mtrs. out of 9982 sq.mtrs., situated within the jurisdiction of Nashik Municipal Corporation/Limits at Deolali. After a full length trial, Suit is decreed in favour of Plaintiff vide Judgment and Order dtd. 4/7/2008. Defendants being aggrieved filed RCA No.448 of 2016. Though RCA is filed immediately after the decree was passed, the filing number of the RCA gives a different impression, but it is not so. RCA No.448 of 2016 is the registration number, which has been given after it was transferred to the current designated Court. There is no delay in filing the RCA. Respondent No.1 is the Plaintiff represented by Mr. Kulkarni. Respondent Nos.2 to 5 are the Defendants, represented by Ms. Joshi before me. Mr. Limaye, represents the third party - Petitioner.

(3.) During pendency of RCA, third party i.e. Petitioner made Application below Exhibit-17, seeking his impleadment. Application is made on the premise that it is the third party himself, who contested the original Suit and it is he himself who filed RCA in the year 2008 on behalf of Defendants. This fact itself proves one thing at the outset itself and i.e. the third party who contested the Suit and filed RCA was clearly knowledgeable about the pending litigation between the parties. The reason for mentioning this, at the outset, is only because, reason of having knowledge of the litigation between parties has to be held against the third party primarily because of the timeline in the present case and the principal argument advanced by Mr. Limaye that the third party is a bonafide Purchaser for value and is a transferee pendente lite. Application seeking impleadment by the third party is filed on 24/2/2023. This is also a notable fact. That Application is appended at page No.147 of the petition. It is stated in the Application, rather cursorily that, Defendants executed a registered Power of Attorney dtd. 17/9/2004 in favour of third party and the same is still in subsistence and force. At this juncture, it needs to be noted that subsistence of the Power of Attorney is refuted by Defendants by informing the Court that it was cancelled by them in 2012 and this fact of cancellation is duly known and even acknowledged in correspondence between the parties.