C/SCA/1219/2023 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1219 of 2023
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SHIRISHKUMAR RAMESHCHANDRA PARIKH
Versus
KISHOREBEN JAGATKISHOR PUROHIT
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Appearance:
MR HASIT DAVE(1321) for the Petitioner(s) No. 1
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/03/2023
ORAL ORDER
1. The present petition is filed by the petitioner challenging the order impugned passed below Exh.36 dated 04.11.2022 by the Principal Senior Civil Judge, Vadodara in Special Civil Suit No.175 of 2018, by which, the trial Court has refused to add the petitioner as party plaintiff to the said suit. The said suit is filed by the plaintiff - respondent No.2 herein and the defendant - respondent No.1 herein for specific performance.
2. The facts of the present case are as under : 2.1 The plaintiff - an administrator of Shri Acharya Mahaprabhuji Ni Bethak Temple viz., Shri Vrajeshkumar Page 1 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 Vrajbhushanlalji Maharaj Shri, Vadodara has filed the suit against the defendant - Smt. Kishoriben Jagatkishor Purohit for specific performance of an agreement to sell, which is executed for an immovable property for the consideration of Rs.6 lakhs. The said agreement to sell is notarised one and not the registered document.
2.2 During the pendency of the suit, the deed of assignment is executed by the original plaintiff in favour of the present petitioner. Therefore, the present petitioner has filed an application below Exh.36 for impleading the party plaintiff in the said suit.
2.3 After considering the rival submissions made by the respective parties, the trial Court has rejected the application for impleading the present petitioner as party plaintiff in the suit vide order dated 04.11.2022. 2.4 At the time of filing the present petition, the original plaintiff was alive and therefore naturally, at the time of filing of an application below Exh.36 before the trial Court, the original plaintiff was alive.
2.5 It is noted that the original plaintiff has expired recently, as submitted by both the learned advocates for the Page 2 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 parties.
2.6 It is this order impugned, the petitioner has challenged before this Court in this petition. 3.1 Learned advocate Mr. Hasit Dave for the petitioner has strongly relied upon the deed of assignment and has submitted that by virtue of the assignment deed, interest is created in favour of the present petitioner. He has further submitted that in view of the provisions of Order I Rule 1 read with Order XXII Rule 10 of the Code of Civil Procedure, the trial Court ought to have allowed the application filed by the petitioner. He has submitted that the trial Court has misread and misinterpreted the documents on record produced by the petitioner. He has submitted that the trial Court has not appreciated the provisions of law and therefore, this petition is required to be allowed by this Court by exercising the powers under Article 227 of the Constitution of India.
3.2 He has further submitted that the application under Order 7 Rule 11 of the Code filed by the defendant is rejected by the trial Court. He has also submitted that the application Exh.5 filed by the plaintiff is allowed by the trial Court. He has also submitted that if the petitioner is joined Page 3 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 as plaintiff in the suit, no prejudice would be caused to the rights of the defendant, as the defendant will get equal opportunity to deal with the averments and submissions made by the petitioner. He has submitted that the plaintiff has filed a purshis and has given no objection before the trial Court for joining the petitioner as party plaintiff. He has submitted that this petition may be allowed. 4.1 Per contra, learned advocate Mr.Amit Joshi for respondent No.1 - original defendant has vehemently opposed this petition. He has submitted respondent No.1 has also filed affidavit by contending the various grounds. He has submitted that the application below Exh.36 was filed by the petitioner when the plaintiff was alive. He has submitted that the plaintiff himself has not filed such application for joining the petitioner as plaintiff in the suit. He has submitted that the issues are already framed by the trial Court and now, the matter is ripe for leading the evidence. He has submitted that at this stage, the petitioner has filed the application before the trial Court for joining as plaintiff in the said suit.
4.2 He has drawn the attention of this Court to the vital document i.e. agreement to sell, which is of the year 2007. He has submitted that the said agreement to sell is an Page 4 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 unregistered document. He has submitted that the suit is filed in the year 2018. Therefore, there is an aspect of delay in the suit proceedings.
4.3 He has further submitted that no case is made out for exercising the powers by this Court under Article 227 of the Constitution of India as the petitioner is a third party to the suit proceedings and therefore, has no right to file such litigation. He has further submitted that moreover, the petitioner has no right to file an application below Exh.36 for joining the petitioner as plaintiff in the suit before the trial Court when the plaintiff was there. He has submitted that the trial Court has rightly rejected the application of the petitioner. He has submitted that this petition may be dismissed.
5.1 I have heard learned advocates for the respective parties. I have also gone through the material available on record. While perusing the application filed by the petitioner before the trial Court below Exh.36 in the suit proceedings, it transpires that the petitioner has not averred any provisions of law that under which provisions, he has filed such application. Even looking to the prayer which is made in that application, which gives impression that the application is filed to implead the petitioner as party plaintiff Page 5 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 in the suit in place of the plaintiff, but, the provisions of law is not reflected from the said application and therefore, it can be presumed that the said application is filed under Order I Rule 10 of the Code of the Civil Procedure, 1908. Said Order I Rule 10 of the Code reads as under :
"Order I Rule 10 : Suit in name of wrong plaintiff.-- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(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.Page 6 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023
C/SCA/1219/2023 ORDER DATED: 27/03/2023 (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.-- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 2 Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
10A. Power of Court to request any pleader to address it.--The Court may, in its discretion. request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader."
Therefore, if we consider the provisions of Order I Rule 10 of the Code, on his own or by way of any application from the party to the suit can add or delete the name of the plaintiff or defendant. It is not the case of the Page 7 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 petitioner here that the petitioner is a stranger to the suit and seeking his impleadment on his own though the said application is rather consented by the purshis of the original plaintiff subsequently, but fact remains that neither the plaintiff nor the defendant has filed such application nor the trial Court on its own finds necessary to add or delete any of the party in the proceedings.
5.2 Now, if we examine Order I Rule 1 of the Code, which is heavily relied upon by the learned advocate for the petitioner, it speaks as to who may be joined as plaintiff in the suit proceedings. The said provision reads as under :
"Order I Rule 1 : Who may be joined as plaintiffs.--All persons may be joined in one suit as plaintiffs where--
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise."
5.3 In view of above, this Court is of the view that this provision is not applicable to the facts of the present case, as during the pendency of the suit, which is already instituted by the plaintiff, by virtue of the assignment deed, Page 8 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 the petitioner is seeking impleadment as party plaintiff without referring any provisions of law in his application. Therefore, reliance which is placed on the provisions of Order I Rule 1 of the Code is not found satisfied considering the facts of the present case.
5.4 The Code of Civil Procedure, 1908 is a self- contained Code, which is required to be kept in mind while conducting the suit. At the same time, the provisions of law like Section 54 of the Transfer of Property Act is also required to be kept in mind. The provisions of law should be adhered strictly in such type of civil proceedings. 5.5 Learned advocate Mr.Hasit Dave for the petitioenr has placed reliance on the Order XXII Rule 10 of the Code, which is as under :
"Order XXII Rule 10 : Procedure in case of assignment before final order in suit.--
(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling Page 9 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 the person who procured such attachment to the benefit of sub-rule (1).
[10A. Duty of pleader to communicate to Court death of a party.--Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.] "
5.6 From bare perusal of such provisions, though there is a provision to implead the party, which is in different context and in different set of circumstances, but not applicable in the facts of the present case. Moreover, in view of Section 54 of the Transfer of Property Act, even the deed of assignment which is executed in favour of the present petitioner by the original plaintiff and considering the decision of Apex Court in the case of Meghmala and Ors v. G. Narasimha Reddy and Ors. reported in (2010) 8 SCC 383, whether such right can be created by the plaintiff in favour of the present petitioner by way of deed of assignment, which is a notarised document or not, is also debatable one. 5.7 Considering the impugned order, by which the trial Court has given cogent and convincing reasons while rejecting the application of the present petitioner, this Court finds that Page 10 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 there is no illegality and perversity committed by the trial Court. There is no justifiable reasons made out by the petitioner.
5.8 At this stage, it is necessary to refer here the observations made by the Hon'ble Apex Court in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly paras 18 and 19 thereof, which are as under :
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal1. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like Page 11 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2has observed:-"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of Page 12 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex- parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an Page 13 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023 C/SCA/1219/2023 ORDER DATED: 27/03/2023 application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
5.9 The scope of exercising the powers under Article 227 of the Constitution of India is very limited and further, this Court finds that there is no ground made out by the present petitioner to exercise the powers by this Court. This petition therefore deserves to be dismissed.
6. For the reasons recorded above, this petition is dismissed. Notice is discharged.
(SANDEEP N. BHATT,J) M.H. DAVE Page 14 of 14 Downloaded on : Wed Mar 29 20:39:00 IST 2023