DILIP MAHADIK Vs. RAMESH CHANDRA MAHADIK

JUDGEMENT

(1.) In this petition filed under Article 227 of the Constitution, the singular question is whether the court below has erred in disallowing the application of the petitioner preferred under Order 1 Rule 10 CPC ?

(2.) The plaintiff/respondent No.1 has instituted a suit for eviction and arrears of rent against defendants No.1 and 2/ respondents No.2 and 3. The suit is registered as Civil Suit No.5A/2011. Written statement was filed in the said suit. The present petitioners preferred an application under Order 1 Rule 10 read with Section 151 C.P.C. for their impleadment on the ground that the plaintiff is real brother of applicant No.1 and applicant No.2 is son of real brother Late Mahendra Mahadik. The said application was opposed by the plaintiff by filing reply. The court below by impugned order dated 9.8.2011 disallowed the said application.

(3.) Shri D.D.Bansal, learned counsel for the petitioners submits that the relation of present petitioners with the plaintiff is not in dispute. He further submits that a partition suit (Annexure P/6) is pending before the competent court which further shows the aforesaid relation. Learned counsel by placing reliance on a series of judgments of Apex Court and this Court submits that no suit can continue unless the consent of other co-owners is taken. In other words, it is argued that unless it is shown that the other co-owners were agreeable to eject the tenant, the suit cannot be filed and continued. In this regard, he relied on India Umbrella Manufacturing Co. and others vs. Bhagabandei Agarwalla (Dead) by LRS Savitri Agarwalla (Smt) and others, 2004 3 SCC 178 Mohinder Prasad Jain vs. Manohar Lal Jain, 2006 2 SCC 724; FGP Limited vs. Saleh Hooseini Doctor and another, 2009 10 SCC 223; and Hameeda Begam vs. Champa Bai Jain and others,, 2004 1 MPLJ 50. He further relied on Sitabai wd/o Meghraj Ji Joshi and others vs. Kamlabai wd/o Late Swamidayalji Shukla, 2004 2 MPLJ 554. Shri Bansal further submits that the court below has erred in disallowing the application whereas the petitioners were necessary parties.