Gujarat High Court
Shaikh Ahmed Raheman vs Shaikh Isamail Ahmed on 2 July, 2025
NEUTRAL CITATION
C/SCA/13964/2010 ORDER DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13964 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 13965 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 13966 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 13967 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 13968 of 2010
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SHAIKH AHMED RAHEMAN
Versus
SHAIKH ISAMAIL AHMED & ORS.
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Appearance:
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 10,11,12,13
MR DILIP L KANOJIYA(3691) for the Respondent(s) No. 17
MR DIPAN DESAI(2481) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 15,16,2,3,4,5,6,7,8,9
NOTICE UNSERVED for the Respondent(s) No. 14
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/07/2025
ORAL ORDER
1. Heard learned advocate Mr. Dipen Sankhesara for M/s Vyas Associates for the petitioner, learned advocate Ms. Jayini Thakor for learned advocate Mr. Dipan Desai for respondent No.1, learned advocate Mr. Nayan N. Bhavsar for learned advocate Mr. Kaushal D. Pandya for the respondent. Though served, none appeared for rest of the respondents.
2. This Court had on 07.08.2023 passed the following Page 1 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined order :-
"1. Retirement Note along with letter and status of postal department tendered by Mr. Dilip L. Kanojiya, learned advocate are ordered to be placed on record. Generally, when advocate withdraws his appearance, notice is required to be issued.
2. In facts and circumstances of present case, Mr.Kanojiya has already intimated the respondent about the pendency of the proceedings. Despite due intimation by counsel, the respondent has not chosen to appear in the matter. Thus, there is no need to issue advocate notice.
3. Heard learned advocate for the petitioner.
List these matters for further hearing."
3. These matters are listed in critically old matters for final hearing. So, this Court thought fit to hear the matters on merit, irrespective of the fact that whether respondent No.17 has chosen not to appear even after his lawyer learned advocate Mr. Dilip L. Kanojiya retired from the matter.
4. As there is common issue involved in these batch of petitions, as a lead matter, the facts of SCA No. 13964 of 2010 is considered for adjudication of all these petitions.
5. The said writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A. Your Lordships may be pleased to issue writ of certiorari and / or any other appropriate writ, direction and order quashing and setting Page 2 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined aside the order dated 07.09.2010 passed by the Learned Principal Civil Judge, Olpad, Surat on an application Exhibit-73.
B. Pending admission and final disposal of this petition, be pleased to stay the operation, implementation and execution of the order dated 07.09.2010, passed by the Principal Civil Judge, Olpad, Surat on application Exhibit-73.
C. To pass such other and further order/s necessary in the interest of justice."
Facts of the case
6. The petitioner herein is original plaintiff, whereas respondent No. 1 to 16 are original defendants and respondent No.17 (hereinafter referred to as 'the applicant') who filed the impugned application below Exh. 73 in Regular Civil Suit No. 08 of 2008 pending before the Principal Civil Judge, Olpad, Surat, to be joined in the suit. The impugned application is filed under Order 1 rule 10 (2) of CPC. As such plaintiff claimed to be title holder of suit property seeking reliefs as prayed in the suit against original owner of suit land. Whereas, it is a case of the applicant that he is agreement to sale holder entered into with original owners of suit property having direct interest in the suit requires to be joined.
7. After hearing the parties, the trial Court vide its impugned order dated 07.09.2010 has allowed it, against Page 3 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined which the aforesaid writ applications came to be filed by the original plaintiff.
Submission of the petitioner-plaintiff
8. Learned advocate Mr. Dipen Sankhesara for M/s Vyas Associates for the petitioner would submit that the impugned application is erroneously allowed by the trial Court, dehors the provisions of Order 1 rule 10 (2) of CPC which requires to be quashed and set aside. He would further submit that the applicant is neither necessary nor proper party, so far as adjudication of suit in question, inasmuch as the applicant is neither title holder nor having any direct interest in the suit property in question.
8.1 Learned advocate Mr. Sankhesara would further submit that as per the case of the applicant, he has entered into an agreement to sell with original owner of the suit land against whom he has filed civil suit, which is pending, seeking specific performance of agreement to sell. It is submitted that it is well settled legal position of law that agreement to sell holder has no right title interest in the property thereby, he is not at all required to be joined in the suit, which is instituted by a person holding title over the suit property.
Page 4 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined 8.2 Learned advocate Mr. Sankhesara would further submit that considering the prayers made in the application and for effective adjudication of the suit, the presence is neither necessary nor proper party and as such he is stranger to the suit wrongly allow to be joined, only on the ground that he has filed suit against the owner and to avoid any conflicting orders passed by the Court, is required to be joined, which is nothing but wrong approach on the part of the trial Court while adjudicating the impugned application.
8.3 To buttress his argument, learned advocate Mr. Sankhesara would refer and rely on the decision of this Court in the case of Babubhai Kanjibhai Borad Vs. Pareshbhai Manubhai Borda and others passed on dated 25.06.2025 in Special Civil Application No. 14721 of 2016.
8.4 Making the above submission, Learned advocate Mr. Sankhesara would request this Court to allow the present writ applications.
Submission of the respondents
9. Learned advocate Ms. Jayini Thakor for learned advocate Mr. Dipan Desai for respondent No.1 would submit that as such the impugned order passed by the trial Court is Page 5 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined not directly effecting the interest of defendants, in asmcuh as plaintiff being dominus litis, is required to be heard and concern about joining and not joining of the party to the suit. She would submit that the impugned order is not in- consonance with the provisions of Order 1 rule 10 (2) of CPC and requires to be interfered by this Court.
10. Whereas, learned advocate Mr. Nayan N. Bhavsar for learned advocate Mr. Kaushal D. Pandya for defendants No. 2 & 3 would adopt the arguments made by respective learned advocates and requested this Court to pass appropriate order in the matters.
11. Making the above submission, all the advocates would request this Court to allow the present writ applications.
Point for determination Whether in the facts and circumstances of the present case, any gross error of law and or jurisdictional error committed by the trial Court while allowing the impugned application, thereby joined the applicant in the suit?
ANALYSIS
12. The facts which are narrated hereinabove and recorded Page 6 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined during the course of submission of the learned advocates for the respective parties, are not in dispute. The applicant is only agreement to sell holder alleged to have entered into agreement to sell with original owner of the suit land, whereas, as per case of the plaintiff, he is in fact the owner of the suit land having right title interest but as such having received threat of disturbing his title and possession of suit land by original owner, suit came to be filed with a prayer seeking declaration and injunction against them.
13. As such, considering the nature of the suit and the prayers which are made in the suit, by no stretch of imagination, presence of applicant being agreement to sell holder of suit land requires for better adjudication of the suit. According to this Court the applicant is neither necessary nor property party, so far as adjudication of the suits in question.
14. The issue germane in the matter is no longer res- integra having already decided by the Hon'ble Apex Court in its number of cases which is thread-bare discussed by this Court in its judgement in the case of Babubhai Kanjibhai Borad (supra) wherein observed and held thus :-
"14. The facts which are discussed hereinabove are no longer in dispute. The petitioner-applicant is claiming his right over the suit land on the strength of an unregistered agreement for sell, allegedly Page 7 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined executed by the original owner of the land in his favor in 2006, which, according to the petitioner, was first in point of time. It is now a well- settled legal position of law that a mere agreement for sell in favour of a person would not create any right, title, and interest in immovable property of such person.
15. It would be apt to refer and rely upon the recent pronouncement of Honourable Supreme Court dated 07.01.2025 in a case of Indian Overseas Bank vs. M. A. S. Subramanian in Civil Appeal No. 282 & 283 of 2025 wherein held as under:-
"[6] It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908."
(emphasis supplied) 15.1. The petitioner having no direct interest in the immovable property having not possessing any title document, he would neither be necessary party nor proper party to decide lis of suit in question. It would again be profitable to refer full bench decision of Hon'ble Apex Court in a case of Razia Begum vs. Sahebzadi Anwar Begum reported in AIR 1958 SC 886 wherein held thus:
"[13] As a result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in S. 115 of the Code;
(2) That in a suit relating to property, in order that a person Page 8 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject- matter of the litigation;
(3) Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Ss. 42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of 'present interest', as evolved by case law relating to disputes about property does not apply with full force; and (7) The rule laid down in S. 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another."
(emphasis supplied)
15. Thus, in view of the aforesaid position of law, the applicant on the strength of agreement to sell allegedly executed by the owner of land in his favour would not entitle him to be joined in the suit instituted by the plaintiff claiming to be title holder of the suit land.
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16. The trial Court has fallaciously observed that to avoid any conflict of judgment between two sets of suits, one filed by the plaintiff and another by the applicant, the impugned application requires to be allowed.
17. Such a ground is not only erroneous and perverse approach on the part of the trial Court but it is contrary to the provisions of Order 1 rule 10 (2) of CPC. If the parties wants to consolidate both the suits, it would always open for them to request the competent Court for its consolidation but that would not be a ground to allow someone to join in the suit that too against wish of dominus litis i.e. plaintiff.
Conclusion
18. Thus, in view of the aforesaid facts and circumstances and position of law as discussed hereinabove, the impugned order is not only erroneous and perverse but passed against the settled position of law, thereby the trial Court has committed gross error of law and so also jurisdictional error by allowing the impugned application.
19. In view of the aforesaid, the impugned order passed in respective writ applications is quashed and set aside. Consequently, the impugned applications filed in the Page 10 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025 NEUTRAL CITATION C/SCA/13964/2010 ORDER DATED: 02/07/2025 undefined respective suits for joining party, thereby the applicant is allowed to be joined in the suit proceeding is also rejected having so held that the applicant is neither necessary nor proper party thereby not required to be joined in the suit proceeding, and in fact not allowed to be joined in the suit.
20. Rule is made absolute to the aforesaid extent. No order as to costs. Interim relief stands vacated forthwith. The trial Court is hereby requested to expedite the suit proceeding as early as possible.
(MAULIK J.SHELAT,J) SALIM/ Page 11 of 11 Uploaded by SALIM(HC01108) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:49:38 IST 2025