Gujarat High Court
Bhaveshbhai Nareshbhai Amin vs Sataji Jethaji Thakor on 21 October, 2021
Bench: B.N. Karia
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 203 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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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 ?
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BHAVESHBHAI NARESHBHAI AMIN
Versus
SATAJI JETHAJI THAKOR & 2 other(s)
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Appearance:
MR TATTVAM K PATEL(5455) for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 2,3
MR YV VAGHELA(2450) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 21/10/2021
ORAL JUDGMENT
Rule. Learned advocate Mr. Y. V. Vaghela waives service
of notice of rule for and on behalf of the respondent no.1 and
learned AGP waives service of notice of rule for and on behalf
of the respondents No.2 and 3.
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
By preferring present petition, petitioner has requested to
quash and set aside the order dated 27.11.2017 passed below
application Ex. 14 in Regular Civil Suit No. 125 of 2015 by
learned 5th Additional Senior Civil Judge, Ahmedabad.
Short facts of the case may be summarized as under:
Regular Civil Suit No. 125 of 2015 was filed by the
respondent no.1 against the respondents no.2 and 3 before the
court of learned Principal Senior Civil Judge, Ahmdabad
(Rural). The present petitioner was not joined as party in the
said suit. On 13th September 2016, an application was
submitted by the present petitioner under Order 1 Rule 10 of
the Code of Civil Procedure (herein after referred to as "the
Code") claiming his rights and interest in the suit property as
claimed by the respondent no.1 in the suit and prayed that to
decide the suit, he was necessary and proper party and without
his presence, issue involved in the suit cannot be decided and
requested to permit him to implead as the party in the suit
preferred by the respondent no.1. Learned Trial Judge, after
hearing the parties, was pleased to dismiss an application
preferred by the petitioner vide order dated 27th November
2017 and hence, this petition.
Heard learned advocates for the respective parties as well
as learned AGP for the respondents No.2 and 3.
It was submitted by learned advocate for the petitioner
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
that this Court, vide order dated 10.05.2008 passed in Special
Civil Application No. 6638 of 2008, was pleased to direct the
Government to allot the disputed land to the present petitioner
within a period of six months from the date of passing of that
order. It was further submitted that State Government was
unable to allot the land to the petitioner. That, one Special
Civil Application No. 3873 of 2010 was preferred by the State
Government, wherein on 07.09.2010, this Court was pleased
to pass an order directing the State Government to allot
alternative land to the petitioner within a period of six months.
The time was extended to the State Government up to 28 th
August 2011 in Misc. Civil Application No. 903 of 2011. That,
as per the order passed by this Court in Special Civil
Application No. 6638 of 2008, in Special Civil Application No.
3873 of 2010 as well as in Misc. Civil Application No. 903 of
2011, State Government allotted the land in question to the
present petitioner on 4th June 2013 through the Revenue
Department ie., the Collector, Ahmedabad dated 19th August
2013. That, though the respondent no.1 was knowing about
the fact of allotting the land to the present petitioner by the
State Government, Regular Civil Suit No. 125 of 2015 was filed
by the respondent no.1 only joining the State of Gujarat as
party. In the suit filed by the respondent no.1, prayer was
sought not to take forceful possession without following due
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
process of law. That, City Mamlatdar had initiated due process
of law by issuing notice to the respondent no.1 under Section
61 of the Land Revenue Code. The respondent no.1 deliberately
concealed the notice issued to him under Section 61 of the
Land Revenue Code. That, in the notice, the land was shown as
final Plot No. 122/2/3 paiki 400 sqr yard and reply was also
wrote by the respondent no.1 on 22 nd May 2015. That,
application Ex. 14 preferred by the petitioner was rejected by
the learned Trial Court is completely illegal and erroneous
without taking into consideration of the fact that though
directly no prayer was sought against the petitioner, prayer
was made indirectly against the petitioner without joining him
as a party defendant. That, the respondent no.2 neither
remained present while hearing of application for injunction
Ex. 5 nor take any interest by filing reply in the suit preferred
by the respondent no.1. That, present petitioner is directly and
substantially affected party, and therefore, he should be
impleaded as party defendant in the suit, however trial court
has committed grave error in dismissing such application. In
support of his arguments, learned advocate for the petitioner
has relied upon the judgment of this court reported in 1986
GLH (UJ) 37 and requested to allow this petition by quashing
and setting aside the impugned order passed by learned Trial
Court dated 27.11.2017.
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
Per contra, learned advocate appearing for the
respondent no.1 has strongly objected the submissions made by
learned advocate for the petitioner and while referring the
plaint of Regular Civil Suit No. 125/2015, he has submitted
that in the suit preferred by the respondent no.1, no relief was
claimed against the present petitioner. That, the plaintiff is in
possession of the suit property since last more than 22 years as
it was purchased by Gafurbhai Vashibhai Rabari by registered
sale deed dated 10.06.1991 and his name was also entered into
the revenue record as entry no. 6267. That, power of attorney
was executed in favour of the plaintiff by Gafurbhai Vashibhai
Desai to administer the suit land. That, proposed party ie.,
petitioner is not necessary or proper party to decide the suit on
merits by the court below, and therefore, his presence is not
required at all for adjudication of the suit. Referring the order
passed by the trial court, it was submitted by learned advocate
for the respondent no.1 that no illegality or error is committed
by the trial court in dismissing application Ex. 14, therefore,
this court may not interfere in the impugned order. That, the
petitioner was silent in Special Civil Application No.10163 of
2013 preferred by the respondent no.1 and no prayer was
made to implead as a party. Hence, it was requested by learned
advocate for the respondent no.1 to dismiss the present
petition.
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
Learned Assistant Government Pleader appearing for the
respondents no.2 and 3 has supported the arguments advanced
by the learned advocate for the petitioner and submitted that
respondents no.2 and 3 have no objection if the present
petitioner would be impleaded as party in the suit preferred by
the respondent no.1/plaintiff.
Having gone through the submissions made by learned
advocates for the respective parties as well as submissions of
learned AGP for the respondent No.2 and 3 and considering
the facts of the case, it appears that certain legal proceedings
were initiated by the either side before this Court. In Special
Civil Application No. 6638 of 2008 preferred by the present
petitioner, on 15th May 2008, statement was made by learned
AGP for the respondent no.2 to allot the land in question,
which was recorded by this Court. Thereafter, process of
allotment of the land was not completed thus, petitioner
approached this Court by way of Special Civil Application No.
3873 of 2010, wherein the State Government was directed to
allot the land as prayed by the petitioner within a period of six
months on 07.09.2010. Again the process of allotment of land
was not completed within time limitation prescribed by this
Court in Special Civil Application No. 3873 of 2010, State
Government approached this Court by preferring Misc. Civil
Application No. 903 of 2011 and time for allotting the land
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
was extended up to 28th August 2011. Ultimately on 14th June
2013, necessary order was passed to allot the land of final plot
No. 122/2/2 admeasuring 1740 sqr meter and final plot no.
122/2/3 admeasuring 694 sqr meter under the signature of
the Collector dated 19.08.2013. It also appears that one
Special Civil Application was preferred by the respondent no.1
before this Court ie. Special Civil Application No. 10163 of
2013 against the State Government. On 13 th November 2014,
Special Civil Application preferred by the respondent no.1 was
withdrawn. Regular Civil Suit No. 125 of 2015 was preferred
by the respondent no.1 without disclosing about previous
proceedings and orders passed by this Court. It also appears
from the record that City Mamlatdar has also issued one notice
to the respondent no.1 under Section 61 of the Land Revenue
Code asking him to vacate the encroachment over the
government land ie., over final plot No. 122/2/3 and as
against that, the respondent no.1 filed his reply addressing to
the City Mamlatdar, Vejalpur on 22nd May 2015, wherein in
Para no.6, he claimed that he is the sole owner and occupant of
the land and it was not the land of the State Government. It
was denied of any encroachment made by the respondent no.1
in the suit property nor any construction made without
sanction of the State Government. As per the contents made in
para 6 of the reply given by the respondent no.1, he was
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
having independent possession and occupancy of the suit land.
Both the parties ie., present petitioner and respondent no.1, are
claimed their rights over the suit property as an owner and
occupant. The facts cannot be denied that suit land was allotted
to the present petitioner under the signature of the Collector.
Present petitioner being power of attorney of the said
Gafurbhai Vashibhai and claiming his rights over the suit
property as an owner and occupant. Interest in the suit
property is prima facie involved of the present petitioner and
therefore, his presence in the suit would be required to decide
the issue involved in the suit.
This Court, in the judgment reported in 1986 GLH (UJ)
37, has observed that however, no relief was sought against the
applicant by the plaintiff in the suit, prayer to implead the
party cannot be denied by the Court.
As observed and discussed above, right, title and interest
are involved in the suit property of the present petitioner,
therefore, he would be necessary party in the suit proceedings
preferred by the respondent no.1. Hence, the impugned order
dated 27.11.2017 passed below application Ex. 14 in Regular
Civil Suit No. 125 of 2015 by learned 5 th Additional Senior
Civil Judge, Ahmedabad is hereby quashed and set aside.
Present petition is hereby allowed along with application
Ex. 14. The petitioner would be permitted to implead as
C/SCA/203/2018 JUDGMENT DATED: 21/10/2021
defendant no.3 in the Regular Civil Suit No. 125 of 2015
preferred by the respondent no.1.
The trial Court shall decide the claim of either side
individually without influenced by the observations made by
this Court in this order.
Rule is made absolute to the aforesaid extent.
(B.N. KARIA, J)
K. S. DARJI
