Shakuntalaben D/O Bhagwandas ... vs Chunilal Dhulabhai Patel ...
2021 Latest Caselaw 4360 Guj

           C/SCA/6535/2020                                       JUDGMENT




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6535 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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      SHAKUNTALABEN D/O BHAGWANDAS VYANKATDAS AND W/O
                  SURENDRALAL NARHARIDAS
                           Versus
             CHUNILAL DHULABHAI PATEL (EXPIRED)
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Appearance:
MR AMIT N PATEL(2749) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
MR PUSHPADATTA VYAS(1296) for the Respondent(s) No. 4,5
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    CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 18/03/2021
                               ORAL JUDGMENT

1. By way of this petition the petitioner-original defendant

prays for the following reliefs:

"(A) A writ of certiorari or any other appropriate writ, order or direction may kingly be issued quashing and setting aside the

C/SCA/6535/2020 JUDGMENT

order dated 02.01.2020, passed by the Court of the Ld. Addl. Civil Judge, Jambusar, below Exh. 160 in Regular Civil Suit No. 77 of 2001 at Annexure-'A' in the interest of justice. (B) Pending hearing and final disposal of the present Special Civil Application, kingly stay the implementation of the impugned order dated 02.01.2020 passed by the Court of the Ld. Addl. Civil Judge, Jambusar, below Exh. 160 in Regular Civil Suit No. 77 of 2001 at Annexure-'A' in the interest of justice. (C) Any other and/or further orders that may be deemed necessary in the interest of justice may kindly be passed."

2. The factual matrix of the case is that the respondent

nos.4 and 5 herein filed an application under Order 22 Rule 3

below Exh. 160 in Regular Civil Suit No.77/2001, praying for

to join them as legal representatives of deceased plaintiff no.

2 namely Jayantibhai Motibhai Patel. The said application was

opposed by the petitioner herein on the ground that the

applicants are not the legal representatives of the deceased

original plaintiff no.2. However, the application came to be

allowed by way of the impugned order dated 02.01.2020.

Hence, this petition.

3. Rule. Learned advocate Mr. Pushpadatta Vyas waives

service of rule on behalf of respondent nos. 4 and 5, who are

the main contesting parties.

4. Heard learned advocate Mr. Amit N Patel for the

petitioner and learned advocate Mr. Pushpadatta Vyas for the

respondent nos. 4 and 5.

5. Learned advocate Mr. Amit Patel for the petitioner has

submitted that original plaintiff nos. 1 to 3 had filed Regular

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Civil Suit No. 77 of 2001 against the present petitioner i.e.

original defendant before the learned Civil Judge, Jambusar

seeking permanent injunction for not selling / transferring/

alienating the suit lands in any manner. He further submitted

that the present petitioner had filed reply to the said suit. He

also submitted that the petitioner has also filed a Regular

Civil Suit No. 75/2001 against the respondent nos. 1 to 3

before the Learned Civil Judge, Jambusar for permanent

injunction for not selling or transferring the suit lands, which

is also pending.

6. Learned advocate Mr. Patel for the petitioner has further

submitted that the present respondent nos.4 and 5 had filed

application vide Exh.160 under Order 22 Rule 3 of CPC along

with an application Exh.154 for delay condonation. In the

said application, it was contended that the present

respondent nos.4 and 5 were Hindu and were performing

religious rituals regularly in Lalji Maharaj Mandir and hence,

they are Hindu beneficiaries and are having same rights in

the suit land as the deceased plaintiff no.2 had. In the said

application, the present respondent nos. 4 and 5 contended

that they should be joined as legal representatives of

deceased plaintiff no.2 in the suit in question as plaintiff nos.

2/1 and 2/2. The present petitioner had filed reply against the

said application wherein all the contentions of present

respondent nos. 4 and 5 were denied and had raised strong

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objections against joining them as plaintiff nos. 2/1 and 2/2.

However, the learned trial Court allowed the said application

under Order 22 Rule 3 of CPC of present respondent nos. 4

and 5, permitting them to be joined as party respondent nos.

2/1 and 2/2 to the suit.

7. Learned advocate Mr. Patel further submits that the learned

trial Court has not appreciated the documents and materials

on record and the fact that the respondent no.4 and 5 are not

the legal representatives of the deceased plaintiff no.2. He

further submitted that there is no cogent evidence to show

that respondent nos.4 and 5 are in anyway related to the

deceased plaintiff no.2. He has further urged that the

impugned order passed under Order 22 Rule 3 is not tenable

in law. Therefore, he has requested to quash and set aside

the impugned order of the trial Court.

8. In support of his submissions, the learned advocate for

the petitioner has placed reliance upon a decision in

Mahendrasinh Jorhubha Zala and Ors. Vs. Deceased

Kantaben Shrikrishna Agrawal and Ors, reported in 2017

AIR(Guj) 204.

9. Per Contra, learned advocate Mr. Vyas for the

respondent nos. 4 and 5 states that the trial Court has

correctly appreciated the facts of the case and there is no

error in the impugned order. He states that the trial Court,

after considering facts and circumstances of the case on

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hand, has come to the conclusion that the presence of the

respondent nos. 4 and 5 is necessary for effective

adjudication of the suit and thus, allowed the application

which is just and proper. He also submitted that the

petitioner has not come with clean hands and also has played

foul to avoid the adjudication of the suit by preferring the

present petition. He submits that the Court may not allow the

present petition as the Regular Civil Suits are already

pending before the courts below.

10. Learned advocate Mr. Vyas for the respondent nos. 4

and 5, in support of his contentions, has placed reliance upon

following decisions of this Court as well as the Hon'ble

Supreme Court, as under :

1. Sadhana Lodh Vs. National Insurance Company

Ltd. reported in 2003(0) GLHEL-SC-24882, wherein

it is held that right of appeal is a statutory right and

where law provides remedy by filing an appeal on

limited grounds and the grounds of challenge cannot be

enlarged by filing petition under Article 226-227 of the

Constitution. It is also observed that supervisory

jurisdiction under Article 227 of Constitution is

confined only to see whether the Subordinate Court or

Tribunal has proceeded within its parameters and not

to correct an error apparent on the face of record much

less of an error of law.

C/SCA/6535/2020 JUDGMENT

2. Commissioner of Education Gujarat State Vs.

Alpana Lallubhai Patel reported in 2016(0) AIJEL-

HC 235901, wherein it is held that the High Court has

only supervisory jurisdiction under Article 227 and

cannot act as an Appellate Authority and has only to

see that an inferior Court has to function within the

limits of its authority.

3. Kirtikumar Jadavji Varsani Vs. Shree

Abjibapanichatedi and Hanumanji Temple Trust

reported in 2016(0) AIJEL-HC- 234935, wherein it is

held that when legal heirs of the original litigants

cannot be joined, then considering the provisions of

entire Order -I, such parties are having same interest

on the subject, then they are necessary parties and can

be joined in the same litigation as provided under Rule

3 of Order -I.

4. State of Gujarat Vs. Govindbhai Jakhubhai and

Anr. reported in 1999 (1) GLH 833.

5. Murtujakhan Akbarkhan Pathan Vs. State of

Gujarat and anr. reported in 2000(2) GLH 698.

6. Dr. Gangaram Panachand Prajapati Vs. State of

Gujarat and anr. reported in 2009 (2) GLH 600.

7. Bharatbhai R Bhavsar Vs. Director of

Municipalities and Others reported in 2008 (2) GLH

752.

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11. Having heard the learned advocates for the respective

parties and considering the averments made in the petition,

so also pursuant to the impugned order dated 02.01.2020,

passed below Exh. 160 in Regular Civil Suit No. 77/2001, it

transpires that by application Exh. 160, it was prayed by

respondent nos. 4 and 5 herein to implead them as legal

representatives of deceased original plaintiff no.2 as they are

proper and necessary parties having interest as beneficiaries

in the suit property. The said application came to be allowed

by the learned trial Judge on the premise that the applicants

are the necessary parties and for effective adjudication, their

presence is required in the suit.

12. In this regard it would be apt to refer to the provisions of Order 1 Rule 9 of the CPC, which read as under:

"No suit shall be defeated by reason of the mis­joinder or non­ joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."

12.1 In the said sets of circumstances, the concept of

necessary and proper party is required to be delved in. A

necessary party is one without whom no order can be made

effectively and a proper party is one in whose absence an

effective order can be made but whose presence is

necessary for a complete and final decision on the question

involved in the proceeding.

C/SCA/6535/2020 JUDGMENT

13. In the case on hand, it was the case of the applicants-

respondent nos. 4 and 5 herein that deceased original

plaintiff no. 2- Jayantibhai Motibhai Patel had died on

06.01.2018 and the legal representatives were required to be

joined in the pending suit. Further, the original plaintiff no.1

was an old aged person and not keeping well. That the

respondent nos. 4 and 5 herein were holding interest in the

suit property as being held by deceased original plaintiff no.2

and accordingly, they were required to be joined as plaintiff

nos. 2/1 and 2/2 in the said suit. Thus, the respondent nos. 4

and 5 herein being the worshipers and having interest in the

suit property, they are necessary parties in the suit.

14. At this juncture, it would also be beneficial to refer the

provisions of Order 22 Rule 3 of Civil Procedure Code which

reads as under :

" 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. ­ (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub­rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

C/SCA/6535/2020 JUDGMENT

15. It is also pertinent to go through the definition of legal representative as defined in section 2(11) of the Civil Procedure Code, which defines that "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

16. By virtue of Order 22 Rule 3, the court on an

application made in that behalf, shall cause the legal

representatives of the deceased plaintiff be made a party and

shall proceed with the suit.

17. Adverting to the facts of the present case, the

applicants-respondent nos. 4 and 5 are stated to be the

beneficiaries in the suit property as was the deceased

original plaintiff no.2. In this regard if the observations made

in para 3 of the impugned order are seen, the learned trial

Judge has relied upon a decision of this Court in Chunilal

Jashraj Lodha and others Vs. Munshi Mahmadhusain

Shaikh and others reported in 1976(17) GLR 227 wherein

it is held that the worshipers of an idol are its beneficiaries,

though only in a spiritual sense. It is further observed that

persons who go in only for the purpose of devotion have

according to Hindu law and religion, a greater and deeper

interest in temples than mere servants who serve there for

some pecuniary advantage. Accordingly the learned trial

Judge has opined that looking to the contents of the

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application as well as the facts of the present suit, it seems

that the applicants are necessary parties to the present suit

property of trust. Another suit is filed by the present

defendant Shakuntalaben against the plaintiff i.e Regular

Civil Suit No. 75/2001. The suit properties are same in both

the suits. The suit properties are the property of trust which

are required to be protected from any irreparable loss.

17.1 Further relying upon a decision in Fatehsinhrao

Pratapsinhrao Gaekwad Vs Savjibhai Haribhai Patel

reported in 1985(1) GLR 14, of this Court, wherein it is held

that a necessary party is one without whom no order can be

made effectively and proper party is one in whose absence an

effective order can be made but whose presence is necessary

for a complete and final decision on the question involved in

the proceedings and came to the conclusion that in the given

set of facts of the present case and the relief claimed by the

plaintiff, the presence of the present applicants is necessary

for effectual adjudication of the present suit.

18. Thus, considering the totality of facts and

circumstances of the case and the observations made in the

impugned order, in the considered opinion of this Court the

present petition merits, no consideration.

19. So far as decision relied upon by the learned advocate

for the petitioner in Mahendrasinh Jorhubha Zala and

Ors. (Supra) is concerned, it transpires that in the said case,

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upon demise of the sole appellant, her legal heirs had not

made any application within the prescribed time limit for the

said suit in place on original appellant/petitioner and in such

circumstances the question before the Court was that

whether the third party applicants can file the application in

the abated proceedings for joining legal heirs to the

deceased. Therefore, the facts and circumstances of the

instant case are different, that the respondent nos. 4 and 5

herein, had made application for joining them as plaintiff nos.

2/1 and 2/2, which came to be allowed by way of the

impugned order. Hence, the said decision would be of no

avail to the present petition.

20. Further, the learned advocate for the respondent nos.4

and 5 has relied upon several decisions as referred herein

above. In Kirtikumar Jadavji Varsani (Supra), it is held

that when legal heirs of the original litigants cannot be

joined, then considering the provisions of entire Order I, such

parties are having same interest on the subject, then they are

necessary parties and can be joined in the same litigation as

provided under Rule 3 of Order I. Thus, it is settled law that

parties having same interests in the subject are necessary

parties and can be opined in the same litigation.

20.1 In Sadhana Lodh (Supra), it is observed that

supervisory jurisdiction under Article 227 of the Constitution

is confined only to see whether the Subordinate Court or

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Tribunal has proceeded within its parameters and not to

correct an error apparent on the face of record much less of

an error of law.

20.2 In Alpana Lallubhai Patel (Supra), it is

observed that the High Court has only supervisory

jurisdiction under Article 227 and cannot act as an Appellate

Authority and has only to see that an inferior Court has to

function within the limits of its authority.

20.3 Thus, in view of the aforesaid settled legal

position, under the supervisory jurisdiction under Article 227

of the Constitution of India, the High Court cannot act as an

appellate authority and has only to see that an inferior Court

has functioned within the limits of its authority.

21. In the aforesaid backdrop, when the learned trial Judge

has come to the conclusion that the respondent nos. 4 and 5

are the necessary parties for effective adjudication of the suit

in question and when the respondent nos. 4 and 5 are stated

to have same interest and beneficiaries of the suit property

being Regular Civil Suit No. 75/2001 against the original

plaintiffs of the present suit and both the suits are pending

and when it is settled law that parties having same interest

are the necessary parties and can be joined in the same

litigation, in the considered opinion of this Court, no case is

made out to interfere in the impugned order.

C/SCA/6535/2020 JUDGMENT

22. In view of the aforesaid discussion and observations,

the present petition fails, being devoid of any merits and is

dismissed accordingly. Rule is discharged. No orders as to

costs.

(A. C. JOSHI,J) Radhika