Gujarat High Court

Mital Vikrambhai Patel vs Legal Heirs Of Deceased ... on 15 November, 2021

Bench: B.N. Karia

    C/SCA/5982/2016                               CAV JUDGMENT DATED: 15/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 5982 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                           No

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?
4      Whether this case involves a substantial question                 No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MITAL VIKRAMBHAI PATEL & 2 other(s) Versus LEGAL HEIRS OF DECEASED NAVINCHANDRA KANTILAL PATEL & 4 other(s) ========================================================== Appearance:

MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1,2,3

MR AMAR N BHATT(160) for the Respondent(s) No. 5 MR MB GOHIL(2702) for the Respondent(s) No. 1.1,1.2,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 15/11/2021

CAV JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr.M.B.

Gohil waives service of notice of rule for and on behalf of

Respondent Nos.1.1, 1.2, 2 and 3 and learned advocate Mr.

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Amar Bhatt waives service of notice of rule for and on behalf of

respondent No.5.

2. By way of present petition, present petitioners have

challenged the legality and validity of the order dated

02.09.2015 passed by the learned Judge, City Civil Court,

Ahmedabad below application Exh.33 moved by the petitioners-

plaintiffs in Regular Civil Suit No.863 of 2011 wherein said

application Exh.33 was rejected. Plaintiff in their application

Exh.33 requested the Court to implead one Mr. Jayantibhai

Somabhai Patel as defendant No.5 in the proceedings of Regular

Civil Suit No.863 of 2011.

3. Shot facts giving rise to present petition may be referred as

under:

Present petitioners/plaintiffs filed Regular Civil Suit

No.863 of 2011 against the respondent Nos.1.1, 1.2, 2, 3 and 4

praying relief of setting aside the sale deed dated 01.01.2010

executed by predecessor of respondent Nos.1 and 2 i.e. original

defendant No.1 (now deceased) on behalf of the petitioner No.3-

plaintiff No.3 on the basis of power of attorney dated

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15.09.2000 alleged to have been executed by the plaintiff No.3

in favour of the predecessor of respondent Nos.1 and 2 i.e.

original defendant No.1. They prayed for a decree for

cancellation the power of attorney dated 15.09.2000, the suit

property bearing T.P. Scheme No.8, Final Plot No.111, City

Survey No.4154 to 4160 situated in Asarwa, Dist-Ahmedabad as

it was an ancestral property as per the contents of the plaintiff

Nos.1 to 3 and they alongwith defendant No.4 are having shares.

Alongwith suits, they produced the documentary evidence such

as revenue record of the suit property, sale deed dated

01.10.2010 alleged to have been executed, records of city survey

of the suit property, copy of the notice dated 14.03.2011 issued

by the plaintiffs through their advocate to original defendant

Nos.1 to 3 and copy of power of attorney dated 11.03.2011 and

moved an application for temporary injunction Exh.5. During

the pendency of this suit, original defendant No.1 passed away

and on account thereof, his legal heirs (present respondent Nos.1

and 2) were brought on record of the case. They filed their reply

in the suit. Defendant Nos.2 and 3, upon being served with

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summons issued by the Court appeared in the proceedings and

contested the suit by filing their written statements in response

to the plaint and application for temporary injunction. They

denied the allegations levelled by the plaintiffs in the suit.

During the pendency of the suit, plaintiffs came to know that

suit property was sold by defendant Nos.2 and 3 in favour of

one Mr. Jayantibhai Somabhai Patel by registered sale deed

dated 23.03.2011. They moved an application Exh.33 in the suit

for impleading Mr. Jayantibhai Somabhai Patel as a necessary

party. Notice was issued by the court to the proposed party

namely Mr. Jayantibhai Somabhai Patel. On receiving the

notice, he filed his objections in respect of the application

Exh.33 moved by the plaintiffs and produced the property card

of the suit property and opposed the application Exh.33 on the

ground that suit property was sold by defendant Nos.2 and 3 to

him prior to institution of the suit. He further contended that

application Exh.33 was belatedly filed and prayed for dismissal

of the application The learned City Civil Court, Ahmedabad,

after hearing the parties, dismissed the application Exh.33 vide

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order dated 02.09.2015. The plaintiffs, being aggrieved and

dissatisfied with the order dated 02.09.2015 passed by the

learned City Civil Court, Ahmedabad below an application

Exh.33 in Regular Civil Suit No.863 of 2011, have approached

this Court by filing this petition under Articles 226 and 227 of

the Constitution of India.

4. Heard learned advocate Mr. Jigar M. Patel for the

petitioners, learned advocate Mr. M.B. Gohil for the respondent

No.1.1, 1.2, 2 and 3 and learned advocate Mr.Amar Bhat for the

respondent No.5.

5. It is submitted by learned advocate for the petitioners that

learned court below has committed material irregularity of law

by observing that presence of Mr. Jayantibhai Somabhai Patel,

being subsequent purchaser of the suit property, was not

necessary for the purpose of deciding controversy involved in

the suit filed by the plaintiffs. That Mr. Jayantibhai Somabhai

Patel is a necessary and proper party for adjudication of the

controversy involved in the Regular Civil Suit No.863 of 2011

as he has derived right, title and interest in the suit property

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through defendant Nos.2 and 3. That in the event of the sale

deed dated 01.01.2010, alleged to have been executed by

original defendant No.1 in favour of the defendant Nos.2 and 3,

being set aside by the Court, it would be very difficult for the

plaintiffs to get the ultimate decree that may be passed by the

court against Mr. Jayantibhai Somabhai Patel as he may come

out with the case that the decree will not be binding to him on

account of he being not joined as a party in Regular Civil Suit

No.863 of 2011. It is further submitted that to avoid the said

technical objections, it was necessary that Mr. Jayantibhai

Somabhai Patel joined as defendant in the suit. That to avoid

multiplicities of the proceedings, prayer made in the application

Exh.33 should be allowed by the court as there is no prejudice

likely to be caused to the proposed party in the event of

application Exh.33 would be allowed by the court. It is further

submitted that impugned order of dismissing the application

Exh.33 is erroneous in law and deserves to be quashed and set

aside. Ultimately, it was requested by learned advocate for the

petitioners/plaintiffs to quash and set aside the order dated

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02.09.2015 passed by the learned City Civil Court, Ahmedabad

below application Exh.33 and allow the prayer made in

Paragraph No.4(A) of the application Exh.33 for joining Mr.

Jayantibhai Somabhai Patel as party defendant No.5 in the

proceedings of Regular Civil Suit No.863 of 2011.

6. Per contra, learned advocate appearing for the respondent

Nos.1.1, 1.2, 2 and 3 submitted in his arguments that two tests

are therein deciding whether a certain person is a necessary

party in a proceedings, (1) that there must be a right to some

relief against such party in respect of the matter involved in the

proceedings and question and (2) it should not be possible to

pass an effective decree in absence of such party. It is further

submitted that in the suit filed by the plaintiffs against the

defendants, no prayer was made in the final relief against the

proposed party. That without presence of the proposed party,

effective decree can certainly be passed by the civil court. That

only relief was claimed in the suit by the plaintiffs against the

defendant Nos.2 and 3 in respect of the registered sale deed

dated 01.01.2010. Further prayer was made against the

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defendant Nos.1 and 2 to quash and cancel the power of

attorney, and therefore, also the proposed party namely Mr.

Jayantibhai Somabhai Patel was not necessary party to

adjudicate the suit effectively. It is further submitted that trial

court has rightly and properly dismissed the application Exh.33

as it was beyond limitation of time. Hence, it was requested by

learned advocate appearing for the respondent Nos.1.1, 1.2, 2

and 3 to dismiss the application and confirm the order dated

02.09.2015 passed by learned City Civil Court, Ahmedabad

below application Exh.33.

7. Learned advocate appearing for the respondent/proposed

party namely Mr. Jayantibhai Somabhai Patel also supported the

findings arrived by the trial court dismissing the application and

submitted that no relief can be granted in favour of the plaintiff

as prayed in Paragraph No.4 of the application Exh.33. It is

submitted that the suit property was purchased by the proposed

party before filing of the suit by registered sale deed dated

27.03.2011 and 04.04.2011. That name of the purchaser was

also entered in the property card on 07.05.2011 at Serial

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No.1373, which was certified by City Survey Superintendent.

That no dispute was raised by the plaintiffs, however name of

the proposed party was entered in the property card in respect of

the suit property and false application was filed after four years

from the date of execution of the registered sale deed in favour

of the proposed party. That application Exh.33 itself is not

maintainable as it was filed after four years from the date of

execution of the sale deed. That mala fidely this application was

filed by the plaintiffs. It is further argued that proposed party is

not required to adjudicate upon the issue involved in the suit or

for the purpose of deciding the real matter involved. It is further

submitted that presence of the proposed party in the suit cannot

be considered as necessary for the purpose of enabling the court

to effectually and completely adjudicate upon and settle all the

questions involved in the suit. That learned court below has

rightly held that proposed party/defendant has no direct interest

in the subject matter of litigation and addition of the proposed

party would result in causing serious prejudice to him and the

substitution or the addition of new cause of action would only

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widen the issue, which is required to be adjudicated and settled.

It is further submitted that mere fact that fresh litigation can be

avoided is no ground to invoke the power under the rule in such

cases, and therefore, it is requested by learned advocate

appearing for the respondent/proposed party to dismiss the

petition. In support of his arguments, learned advocate

appearing for the proposed party has relied upon the judgments

reported in the (1992) 2 Supreme Court Cases Page 524,

(2005) 6 Supreme Court Cases Page 733 and (2008) 9

Supreme Court Cases Page 1.

8. Having heard learned advocates for the respective parties,

issue involved in the suit as well as application Exh.33 preferred

by the original plaintiffs in Regular Civil Suit No.863 of 2011,

objections filed by the proposed party against the application

Exh.33 vide Exh.45, conclusion arrived by the learned City

Civil Court in his order dated 02.09.2015, it appears that

Regular Civil Suit No.863 of 2011 was filed against the

defendants before the City Civil Court, Ahmedabad praying for

a relief to set aside the sale deed dated 01.01.2010 executed by

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the original defendant No.1 on behalf of the plaintiff No.3 on

the basis of power of attorney dated 15.09.2000 alleged to have

been executed by the plaintiff No.3 in favour of the original

defendant No.1. Plaintiffs also prayed for decree of cancellation

of the power of attorney dated 15.09.2000 alleged to have been

executed by the plaintiff No.3 in favour of the defendant No.1.

The suit property bearing T.P. Scheme No.8, Final Plot No.111,

City Survey No.4154 to 4160 was situated in Asarwa, Dist-

Ahmedabad, which is allegedly ancestral property wherein

plaintiffs and defendant No.4 have their shares. The original

plaintiff along with the plaint, produced certain documents such

as revenue record of the suit property, sale deed dated

01.10.2010 executed in favour of the defendant Nos.2 and 3 by

original defendant No.1, records of survey of the suit property,

notice dated 14.03.2011 issued by the plaintiffs, power of

attorney dated 11.03.2011 executed by the plaintiff No.3 in

favour of the plaintiff No.1. They also moved an application for

temporary injunction Exh.5 in the suit.

9. It appears from the record that during the pendency of the

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suit, original defendant No.1 passed away and his legal heirs

(present respondent Nos.1 and 2) were brought on record of the

case. They filed their reply in Regular Civil Suit No.863 of

2011. It further appears that defendant Nos.2 and 3 upon being

served with the summons issued by the court, appeared in the

said proceedings and contested the suit by filing written

statement in response to the plaint and application for temporary

injunction. They denied the allegations levelled by the plaintiffs

in the plaint. During the pendency of the suit, plaintiff came to

know that the suit property was sold by the defendant Nos.2 and

3 in favour of Mr.Jayantibhai Somabhai Patel by registered sale

deed dated 23.03.2011, thus they moved an application Exh.33

in the suit for impleading Mr.Jayantibhai Somabhai Patel to the

proceedings of the suit as a defendant No.5. Sale deed was

executed in his favour on 23.03.2011. The trial court was

pleased to issue notice to Mr.Jayantibhai Somabhai Patel and on

receipt of the said notice, he filed his objection against the

application Exh.33 preferred by the plaintiffs alongwith the

objections filed by him. He also produced the property card of

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the suit property and opposed the application Exh.33 on the

ground that suit property was sold by defendant Nos. 2 and 3 to

him prior to institution of the suit. He further contended that

application Exh.33 was moved by the plaintiff belatedly and

prayed for dismissal of the application Exh.33. As per the

contents made by the plaintiff in the suit i.e. Regular Civil Suit

No.863 of 2011, the suit property was ancestral property and no

power of attorney was executed by the plaintiff No.3 in favour

of the defendant No.1. That alleged power of attorney was

fabricated and got out by the defendant No.1 allegedly executed

by the plaintiff No.3.

10. It is further averred in the suit that defendant No.1 has no

right or title interest to transfer the suit property as it was an

ancestral property, however, registered sale deed was executed

by the defendant No.1 being a power of attorney in favour of

the defendant Nos.2 and 3 dated 01.07.2010 for a consideration

of Rs.4,90,000/-. Two reliefs were claimed by the plaintiffs in

the suit for setting aside the sale deed dated 01.01.2010 executed

by the defendant No.1 on behalf of the plaintiff No.3 and prayed

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for a decree of cancellation of the power of attorney dated

15.09.2000 alleged to have been executed by the plaintiff No.3

in favour of the defendant No.1. It further appears that defendant

Nos.2 and 3 in the suit had sold the suit property in favour of

Mr.Jayantibhai Somabhai Patel by registered sale deed dated

23.03.2011, which was also admitted by him in his objection

Exh.45 in Paragraph No.6. In view of the registered sale deed

executed by defendant Nos.2 and 3 in the suit in favour of the

proposed party, he derived right, title and interest in the suit

property. The proposed party has received direct interest in the

subject matter of litigation. In a suit seeking cancellation of sale

deed by the plaintiffs, a person who has purchased the property

and whose rights are likely to be affected pursuant to the

judgment in the suit is a necessary party and he has to be added.

11. To do justice between the parties in respect of the suit

property, newly purchaser is a necessary party, and therefore, he

should be impledaded under Order 1 Rule 10 of the C.P.C. The

provision under Order 1 Rule 10 of C.P.C speaks about judicial

discretion of the court to strike out or add parties at any stage of

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the suit. It can strike out any party who is improperly joined it

can add any one as a plaintiff or defendant if it finds that such

person is a necessary or proper party.

12. According to opinion of this Court, learned City Civil

Court, Ahmedabad has taken hyper technical approach by

petitioner rejecting the application Exh.33 filed by the plaintiffs

under Order 1 Rule 10 of the C.P.C. which may result in the

miscarriage of justice.

13. The proposed respondent namely Mr.Jayantibhai

Somabhai Patel has vital interest in the outcome of the suit.

Such application has to be approached keeping in mind that the

courts are meant to do substantial justice between the parties and

that technical rules or predecessors should not be given

precedence for doing substantial justice. Undoubtedly justice

according to law does not merely meant technical justice but

means that law is different administered to advance justice.

Issue of limitation may be decided during the course of the trial.

14. In case of Pankajbhai Rameshbhai Zalavadiya versus

Jethabhai Kalabhai Zalavadiya (deceased) through Legal

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Representatives and others reported in (2017) 9 SCC Page 700

in Paragraph No.10, Hon'ble Apex Court has held as under:

"Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit."

15. The judgment, relied upon by learned advocate appearing

for the respective respondents, in case of Shamshad Ahmad

and others v. Tilak Raj Bajaj (deceased) through LRS. And

others reported in (2008) 9 SCC Page 1, was between land-lord

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and tenant and on the ground of bona fide requirement, suit was

filed by the plaintiff. In Paragraph No.38 of the said judgment,

Hon'ble Apex Court has discussed the powers of the High Court

vested under Articles 226 and 227, which is as under:

"Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law."

16. In case of Kasturi versus Iyyamperumal and others

reported in (2005) 6 SCC Page 733, there was a suit for specific

performance of contract. In connection with an application

under Order 1 Rule 10(2) of the C.P.C, 1908, it was held that

only parties to the contract or parties claiming under them, or a

person who had purchased the contracted property from the

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vendor with or without notice of the contract and person who

claims independent title and possession adversely to title of

vendor is not a necessary party since an effective decree can be

passed in his absence and no relief is claimed against such party.

As per the facts of the case in the cited judgment, it was a suit

for specific performance of contract, and therefore, subsequent

purchaser was not found necessary party as it is passed on a

different factual aspect, this judgment would not be helpful to

the respondents.

17. In case of Ramesh Hirachand Kundanmal versus

Municipal Corporation of Greater Bombay and Others

reported in (1992) 2 SCC Page 524 Hon'ble Apex Court has

held as under:

"6. .....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. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case

10. The power of the Court to add parties under Order I Rule 10, C.P.C, came up for consideration before this Court in Razia

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Begum (supra). In that case it was pointed out that the Courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it be the questions relating to movable or immovable property."

18. Having regard to the totality and narration made supra,

there is no bar for filing the application Exh.33 under Order 1

Rule 10 of C.P.C. In view of the above discussion, impugned

order dated 02.09.2015 passed by leaned City Civil Court,

Ahmedabad below an application Exh.33 in Regular Civil Suit

No.863 of 2011 is hereby set aside. Therefore, present petition is

allowed. Rule is made absolute to the aforesaid extent.

19. Learned Trial Court, Ahmedabad is directed to implead

Mr. Jayantibhai Somabhai Patel as defendant No.5 and bring

him on record subject to the plea of limitation as raised by him

to be decided during the trial.

(B.N. KARIA, J)