Gujarat High Court
Mali Kapurji Vaghaji vs State Of Gujarat on 22 April, 2025
NEUTRAL CITATION
C/AO/202/2023 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 202 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/APPEAL FROM ORDER NO. 202 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MALI KAPURJI VAGHAJI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1
MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/04/2025
ORAL JUDGMENT
1. Heard learned counsel Mr. Nishit Gandhi for the Appellant, learned counsel Mr. Kishore Prajapati for Respondent No. 2, and learned AGP Mr. Akash Chhaya for Respondent No. 1.
2. Admit. Learned counsel Mr. Kishore Prajapati waives service of notice of admission on behalf of Respondent No.2. Page 1 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025
NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined Learned AGP Mr. Akash Chhaya waives service of notice of admission on behalf of Respondent No.1. With the consent of respective learned counsel, appeal is taken up today for its final hearing.
3. The present appeal is preferred under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') against the judgment and decree dated 23rd February 2019, passed by 2nd Additional District Judge, Banaskantha in Regular Civil Appeal No. 15 of 2012. The appellate court has remanded the matter back to the trial court.
3.1 The parties will be referred to as per their status before the trial court.
4. Short Facts :
4.1 The appellant herein is the original plaintiff, who filed Regular Civil Suit against Respondents No. 2 and 3. The suit was filed seeking permanent injunction against the defendants, as according to the plaintiff, he became the owner of the suit Page 2 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined property having purchased it by way of a registered sale deed from cousin brothers of the defendant. The trial court decreed the suit in favour of the plaintiff. Defendant No. 1 filed Regular Civil Appeal No. 15 of 2012 before the appellate court challenging the judgment and decree passed by the trial court.
It appears the State was joined as Respondent No. 3 in the appeal albeit, there was no order passed by the appellate court nor any application under Order I Rule 10(2) of the CPC filed by defendant No. 1 to join State in appeal. Be that as it may, State was joined in the appeal. After hearing the parties, the appellate court partly allowed the appeal and remanded the matter back to the trial court, observing that the State is a necessary party and the trial court was directed to re- adjudicate the suit on merits.
4.2 Feeling aggrieved and dissatisfied by the judgment and decree passed by the appellate court, the original plaintiff has preferred the present Appeal from Order.
5. Submissions on behalf of appellant-plaintiff:
5.1 Learned counsel Mr. Nishit Gandhi for the appellant- Page 3 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025
NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined original plaintiff would submit that, as per the record of appeal filed by Defendant No. 1, there is no indication that how State was joined as a party in the appeal proceedings. 5.2 Learned counsel Mr. Gandhi would submit that it is not the case of defendant No. 1 that the land in question belongs to the government. He would further submit that, there is no whisper in the pleadings of how or why the State should be a necessary and or proper party to the proceedings. 5.3 Learned counsel Mr. Gandhi would further submit that, the appellate court committed a gross error of fact as well as law by joining the State in the appeal and thereafter remanding the matter. It is submitted that learned assistant government pleader had not provided any assistant to appellate court and even not a case of any one that State has either question revenue entry mutated in favour of plaintiff or any legal action taken by State against plaintiff to get possession of suit property from plaintiff.
5.4 Learned counsel Mr. Gandhi would further submit that, the trial court, after framing necessary issues, held that the Page 4 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined plaintiff to be the title-holder of the property having purchased it from its owner who happens to be deemed tenant. As such nothing on record to remotely show that State has any direct interest in subject suit property.
5.5 Learned counsel Mr. Gandhi would further submit that, the suit is filed to protect a private and individual right then, presence of the State is neither necessary nor proper to adjudicate the claim of the parties to suit. It is submitted that no revenue entry stand as on date would indicate that suit land is Bhudan land thereby belongs to State and wrongly purchased by the plaintiff.
5.6 Learned counsel Mr. Gandhi would further submit that, the appellate court's judgment is not only erroneous and perverse but contrary to the settled principles of law, which requires to be interfered by this Court. It is submitted that concept of necessary and or proper party is not properly appreciated by appellate Court which resulted into miscarriage of justice.
5.7 Making above submissions, learned counsel Mr. Gandhi Page 5 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined requested this Court to allow the present appeal.
6. Submissions of respondent No.1 - State 6.1 Learned AGP Mr. Akash Chhaya would submit that, there is no error in the judgment of the appellate court, while remanding the matter back to the trial Court and in fact observations made by the appellate Court would indicate that the suit land was Bhudan land and thereby presence of State is necessary for adjudication of suit on merits. 6.2 Learned AGP Mr. Chhaya would further submit that, when the question of title is framed by the trial court, the State's presence is essential.
6.3 Lastly, learned AGP Mr. Chhaya would candidly submit that, it is not clear why the State was joined in the appellate proceedings and in fact in the absence of effective representation of the State in the appeal, it would be difficult for him to assist this Court. Nonetheless, if this Court will interfer with the impugned judgment and decree, right may be reserve in favour of State reserves to proceed against Page 6 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined individuals in connection with suit land in accordance with law.
7. Submissions on behalf of respondent No.2 - defendant No.1 7.1 Learned counsel Mr. Kishore Prajapati submitted that, the defendant No. 1 has not challenged the judgment and decree on the ground that the State is a necessary/proper party and it is unclear as to how State was joined in the appellate proceedings.
7.2 Learned counsel Mr. Prajapati would further submit that, the defendant No. 1 has a good case on merits, but unfortunately, the appellate court has not examined merits and remanded the matter instead.
7.3 Learned counsel Mr. Prajapati would humbly request this Court that, in case where this Court would come to the conclusion that presence of State is neither necessary nor proper then in such circumstances, this Court may remand the matter back to appellate court to decide the appeal on merits. Page 7 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025
NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined 7.4 Making the above submissions, learned counsel Mr. Prajapati requested this Court not to entertain the present appeal.
No other and further submissions are made.
8. Analysis :
8.1 The short question falls for consideration of this Court as to whether the impugned judgment and decree passed by the appellate court is erroneous, perverse or arbitrary? and whether any error of law was committed by the appellate court in remanding the matter back to the trial court for fresh consideration?.
8.2 The facts, as stated, are not in dispute. The suit was filed for permanent injunction by the plaintiff based on a registered sale deed executed in favour of plaintiff by its original owner, who was, at one point, a tenant of the suit land, cultivating it on tiller day i.e. 01.04.1957 in accordance with the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. Page 8 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025
NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined 8.3 The trial court framed necessary issues, none of which included the requirement of the State being a necessary or proper party. No order was passed by the appellate court directing the joinder of the State, and no application under Order I Rule 10(2) CPC was filed. Be that as it may, it appears that due to handwritten entry into the memo of appeal, State was joined as respondent No.3 in the appeal. Such recourse is not known to law and it shows that how appeal proceedings are casually undertaken by the appellate Court. 8.4 After going through the judgment and decree passed by the trial Court, prima facie, it appears that the dispute between the parties are private in nature wherein plaintiff is seeking injunction against defendant for not to disturb/interfere into his possession. Whereas, defendants are claiming right over the suit land but in none of the case of the parties, remotely it has been suggested that the suit land belongs to the State. Even there is nothing on record of suit would remotely indicate that State is stakeholder qua suit land as neither any order nor any mutation entry in favour of State qua suit land. As such prima facie, order passed by revenue Page 9 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined authority would go counter to what has been observed by appellate court indicating that State is necessary party having interest in the subject suit land. It appears that the appellate court, rather than considering the merits of the appeal, diverted itself based on irrelevant and extraneous factors. 8.5 At this stage, it would be profitable to refer the decisions of Hon'ble Supreme Court of India in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and others reported in (2010) 7 SCC 417, more particularly in Para- 13, 14 & 15.
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.
Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said subrule is extracted below:
10 (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 Page 10 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined 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."
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or
(b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance ." (emphasis supplied) Page 11 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined 8.6 Thus, according to me, the appellate court erred in holding that, the State is a necessary and proper party. The judgment/decree impugned in the present appeal are not only erroneous and perverse but also contrary to the basic principles of law which requires interference of this Court while exercising its appellate power under Order 43 R. 1 (u) of CPC. 8.7 At the same time, the request made by learned counsel Mr. Prajapati is well founded. Since the appellate court did not examine the matter on its merits, the matter is required to be remanded back to the appellate court with a specific observation that the State is neither a necessary nor proper party and appellate court should heard and decide the appeal on its merit germane from the judgment/decree passed by the trial court. So far request made by learned AGP Mr. Chhaya is concern, this Court would only observe that in absence of any prohibitory order passed by any Court including this Court, it would be for State to take appropriate steps albeit, in accordance with law in relation to subject suit land. Page 12 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025
NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined
9. Conclusion :
9.1 In view of the above, the appeal is partly allowed. The impugned judgment and decree dated 23rd February 2019 passed by 2nd Additional District Judge, Banaskantha in Regular Civil Appeal No. 15 of 2012 is hereby quashed and set aside. The aforesaid Regular Civil Appeal No. 15 of 2012 is restored to the file of the appellate court to be decided afresh on its own merits within six (6) months from the date of receipt of this order as indicated herein above albeit, after giving an opportunity of hearing to all parties to suit. 9.2. As this Court has already hold that State is neither necessary nor proper party to appeal/suit proceeding, cause title of Regular Civil Appeal No. 15 of 2012 be corrected accordingly by appellate court before proceed to heard the appeal on its merit.
9.3 It is clarified that this Court has neither gone into nor examined the merits of the matter.
9.4 The respective parties shall be at liberty to raise all Page 13 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025 NEUTRAL CITATION C/AO/202/2023 JUDGMENT DATED: 22/04/2025 undefined contentions before the appellate court. 9.5 There shall be no order as to costs. Direct service is permitted.
10. In view of disposal of the main Appeal from Order, as a sequel connected civil application stands disposed of accordingly.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 14 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri Apr 25 2025 Downloaded on : Mon Apr 28 22:24:42 IST 2025