Takhatsang Naransang Wala vs Legal Heirs Of Prabhatsing ...
2021 Latest Caselaw 15262 Guj

      C/SCA/3405/2020                               JUDGMENT DATED: 28/09/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3405 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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

2    To be referred to the Reporter or not ?                          NO

3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                NO

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution              NO
     of India or any order made thereunder ?

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                      TAKHATSANG NARANSANG WALA
                                   Versus
                  LEGAL HEIRS OF PRABHATSING JESANGBHAI
==========================================================
Appearance:
MR JF MEHTA(461) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,2
MS.SHIVANI V TRIVEDI(7225) for the Respondent(s) No. 3
RAVI A PANDYA(8595) for the Respondent(s) No. 3
==========================================================

       CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 28/09/2021

                              ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Ms. Shivani

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

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

respondent No.3.

2. By preferring this petition, petitioner has requested to quash

and set aside the order dated 16.01.2020 passed by the learned 2 nd

Additional Senior Civil Judge, Gandhinagar in Special Civil Suit

No.171 of 2006.

3. Short facts of the present case may be referred as under:

The plaintiff filed a civil suit against the defendant Nos.1 and

2 for cancellation of the sale deed executed by the defendant No.2

in favour of the defendant No.1 by forging the power of attorney of

the plaintiff as per the contention made in the plaint. As per further

contention of the plaintiff in the year 2018, entire evidence was

over and even arguments were also heard but anyhow judgment

was not delivered and the third party namely Rameshbhai

Jesangbhai Chaudhary made an application to join him as a

necessary party to the court proceedings. Reply was filed by the

present petitioner/plaintiff vide Exh.104 by contesting the said

application. The trial court was pleased to pass an order below

Exh.101 allowing the third party to be joined under Order 1 Rule

10 of C.P.C. Hence this petition.

4. Heard learned advocate for the petitioner and learned

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

advocate for the respondent.

5. It is submitted by learned advocate appearing for the

petitioner that the proposed respondent No.3 in his application has

made the averments that he has purchased the suit property from

Pasabhai Virchandbhai Prajapati on 27.02.2008, and therefore, he

is the owner of the suit property and was in possession. It was

further contended in the application that suit was preferred by the

petitioner and respondent No.2 in collusion as he was bona fide

purchaser of the suit property, and therefore, he is necessary and

proper party, he requested to permit him to join as defendant No.3

in the suit. It is submitted that suit was pending since 2006 and

there was lis pendens registered by the plaintiff, and therefore, the

proposed party cannot be said to be a bona fide purchaser of the

suit property. It is further submitted that third party applicant

would be a subject to embargo of Section 52 of the Transfer of

Property Act. That however suit was pending since 2006, third

party did not file any application to join him as a necessary party in

the suit proceedings. It is further submitted that when the suit was

posted for judgment, the application below Exh.101 was filed by

the third party, as proposed defendant to begun the suit initiation.

That third party has no concern with the prayer made by the

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

plaintiff against the defendant Nos.1 and 2. That no relief was

claimed against the third party in this suit and his presence was not

necessary in deciding the suit controversy. That with mala fide

intention below Exh.101 was filed by the third party i.e. proposed

defendant with a view to prolong the trial unnecessarily. That trial

court has completely ignored Order 1 Rule 10 of the C.P.C. and

beyond the scope and limit impugned order is passed. It is further

submitted that presence of the third party was not necessary for

effective hearing of the suit transaction. Hence, it was requested by

learned advocate for the petitioner to quash and set aside the

impugned order passed by the trial court below Exh.101. In support

of his arguments, learned advocate for the petitioner has relied

upon the judgments reported in 1992 (0) GLHEL­SC 23585,

2016(0) AIJEL­SC 60241 and 2003 (0) GLHEL­SC 3681.

6. Per contra, learned advocate for the respondent has

supported the conclusion and findings arrived at by the trial court

while allowing the application Exh.101 permitting the proposed

respondent as a party. It is further submitted that the suit property

was purchased by the proposed defendant by registered sale deed

dated 27.02.2008 from Pasabhai Virchandbhai Prajapati and he

was in possession having interest, and therefore, he was necessary

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

party being a owner. It is further submitted that proposed

defendant was not aware with the facts of filing of the suit by the

plaintiff against the defendant Nos.1 and 2. When second suit was

filed in the year­2012 by the plaintiff against the proposed

defendant, for the first time he came to know about the present suit

filed by the plaintiff against the defendant Nos.1 and 2. Hence

application below Exh. 101 was filed by him with a request to

permit him to join as a party as he was necessary party. It is further

submitted that the proposed defendant has a right, title and interest

in the suit property and he is proper and necessary party as he has

interest in the subject matter of the litigation and his presence

would be necessary for proper adjudication effectively upon and

determine the cause of action in the suit. That no illegality or error

is committed by the trial court in permitting the proposed

respondent in the suit as a defendant. Hence, it was requested by

learned advocate for the respondent to dismiss the present petition.

In support of her arguments, she has relied upon the judgment of

the Hon'ble High Court of Allahabad reported in AIR 2016

Allahabad Page 15 and AIR 1999 Supreme Court Page 976.

7. Having heard learned advocate for the petitioner and learned

advocate for the respondent and having gone through the

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

documents produced on record, it appears that original plaintiff

filed the suit against the defendant Nos.1 and 2 for cancellation of

the sale deed dated 27.03.2006 executed by respondent No.2 in

favour of the respondent No.1 by forging the power of attorney of

the petitioner. It is not in dispute that evidence of the parties was

over and final arguments was also heard before the court below. It

is not in dispute that civil suit No.171 of 2006 was pending for

pronouncement of judgment but however, it was not pronounced.

Meanwhile the proposed defendant namely Rameshbhai Jesangbhai

Chaudhary filed an application below Exh.101 under Order 1 Rule

10 of CPC and requested to join him as the defendant No.3 in the

suit proceedings. As per the contention raised in the application

below Exh.101, the suit was filed with collusion of the defendant

by the plaintiff. It further appears that plaintiff challenged the

registered sale deed executed on 27.03.2006 in favour of the

defendant No.1 by the defendant No.2.

8. During the pendency of the suit, defendant No.1 transferred

the suit property by registered sale deed dated 01.07.2006 in

favour of Pasabhai Virchandbhai Prajapati, Village­ Ambaliysan,

Dist­Gandhinagar. The said party namely Pasabhai Virchandbhai

Prajapati, transferred the suit property to the proposed defendant

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

by registered sale deed dated 27.02.2008. As per the contention

raised by the proposed defendant in his application Exh.101, he is

the bona fide purchaser and was enjoying the possession of the suit

property being an owner. As he was necessary party for

adjudication of the suit, he requested to permit him to join as party

defendant No.3. Observation made by the court below in the order

below Exh.101 that plaintiff has suppressed the facts of the

registered sale deed executed in favour of the proposed defendant

marked as 103/2 appears to be not correct. The suit was filed on

15th December, 2006 and registered sale deed was executed in

favour of the proposed defendant by Pasabhai Virchandbhai

Prajapati on 27.02.2008. The plaintiff could not aware of the

registered sale deed executed in favour of the proposed defendant

on 27.02.2008 while filing the suit before the Court below on

15.12.2006. Further it appears that another Special Civil Suit

No.143 of 2012 was filed by the plaintiff against the proposed

defendant, which was also pending for adjudication. Entire

evidence was over in Special Civil Suit No.171 of 2006 in the year

2018 and even arguments are also heard by the court below. The

proposed defendant was aware with the facts that another Special

Civil Suit No.143 of 2012 was filed by the plaintiff against him and

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

had also meeting with the plaintiff in respect of the suit property,

however, he was silent till the evidence was over as well as the

arguments were heard by the court. At the fag end pronouncement

of the judgment of the suit, proposed defendant filed an application

Exh.101 to permit him as defendant No.3 under Order 1 Rule 10(2)

of C.P.C.

9. While deciding the question of joining a person in a suit, he

must be one whose presence is necessary as a party. What makes a

person a necessary party is not merely that he has relevant evidence

to give on some of the questions involved, that would only make

him a necessary witness. It is not merely that he has an interest in

the correct solution of some question involved and has thought of

relevant arguments to advance. The only reason which makes it

necessary to make a person a party to an action is so that he should

be bound by the result of the action and the question to be settled,

therefore, must be a question in the action which cannot be

effectually and completely settled unless he is a party. The line has

been drawn on a wider construction of the rule between the direct

interest or the legal interest and commercial interest.

10. For the purpose of granting relief sought by the proposed

defendant by referring the sale deed executed in his favour creating

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rights in the suit property, it is not necessary for the court to

consider that answer. If that it show, the presence of the proposed

party cannot be considered as necessary for the purpose of enabling

the court to effectually and completely adjudicate upon and settle

for the questions involved in the suit.

11. Proposed party has purchased the suit property despite of the

fact that he was within knowledge of fact that present suit is

pending since 2006 and their lis pendens registered by the plaintiff,

therefore, he cannot be said to be a bona fide purchaser of the suit

property. The proposed party would be a subject to the embargo of

Section 52 of the Transfer of Property Act. In the plaint, no relief

was claimed by the plaintiff against the proposed party.

12. The similar question was decided by the Hon'ble Apex Court

in the case of Bibi Zubaida Khatton v. Nabi Hassan Saheb

reported in 2003 (0) GLHEL­SC 3681 relied upon by the learned

advocate for the petitioner. As per the contents of the aforesaid

citation, an application was submitted under Order 1 Rule 10,

Order 22 Rule 10, Order 6 Rule 17 of the C.P.C, for impleadment of

transferee pendente lite as a co plaintiff in one suit and defendant

in the other suit, an application was also made for amendment of

the pleading consequent to her proposed joinder as a party in the

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

two suits. Trial court rejected the applications observing that the

property having been purchased during the pendency of this suit.

The decree passed shall bind the transferee pendente lite. Hon'ble

Apex Court held that the petitioner being a transferee pendente lite

without leave of the court can not seek impleadment as a party in

the suits which are long pending. The order of the trial court

rejecting the application on the ground that prima facie, the action

of alienation did not appear to be bona fide and alienation

obviously would be hit by the doctrine of lis pendens was confirmed

by the Hon'ble Apex Court.

13. In another judgment, in the case of Mohamed Hussain

Gulam Ali Shariffi versus Municipal Corporation Of Greater

Bombay reported in 2016(0) AIJEL­SC 60241, it is held by the

Hon'ble Apex Court, which is as under:

"15. It is a settled principle of law, which does not need any authority to support the principle, that the plaintiff being a dominus litis cannot be forced to add any person as party to his suit unless it is held keeping in view the pleadings and the relief claimed therein that a person sought to be added as party is a necessary party and without his presence neither the suit can proceed and nor the relief can be granted. It is only then such person can be allowed to become party, else the suit will have to be

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

dismissed for non­impleadment of such necessary party. Such does not appear to be a case here."

14. In the case of Ram Naresh v. Additional District Judge and

Ors. Reported in AIR 2016 Allahabad Page 15, relied upon by

learned advocate for the respondent, it was held that subsequent

transferee can be impleaded as party in the suit where purchaser is

seeking enforcement of an agreement for sale and has come up for

specific performance though it is wholly unnecessary for him to

challenge conveyance/sale deed executed by vendor during

pendency of the suit in favour of the party proposed to be brought

on record in the suit.

15. In the cited case, application preferred by the plaintiff under

6 Rule 17 of CPC for seeking impleadment of three persons namely

Mr. Vijay Pratap, Mr. Ram Pravesh and Mr. Ajay, as defendant

Nos.5,6 and 7, and for addition of certain paragraphs in the plaint,

bringing on record subsequent facts of transfer of property in

dispute by defendants Nos.3 and 4 in favour of respondent Nos.5 to

7 vide sale deed dated 10.12.1999 was rejected.

16. Hon'ble High Court has observed that under order 22, Rule

10, C.P.C., Legislature has intended that proceedings would

continue by or against the original party, although he ceased to

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

have any interest in the subject matter of the dispute, despite the

failure to apply for leave, to continue by or against the person upon

whom the interest has developed, for bringing him on record.

17. Here, in the instant case admittedly, another Special Civil

Suit No.143 of 2012 is filed by the plaintiff before the Civil Court

against the proposed defendant in connection with the suit

property, which is pending for adjudication.

18. Hon'ble Apex Court in the case of A. Nawab John versus

V.N. Subramaniyam reported in 2012 (2) GLH Page 693 has

observed that when the pendente lite purchaser seeks to

impleadment himself as a party­defendant to the suit, such

application should be liberally considered. In the cited case, suit

property was purchased by the proposed party from the defendant.

In the present case, the suit property was never purchased by the

proposed party from the defendant in the suit.

19. Another suit was also filed by the plaintiff in respect of the

suit property against the proposed defendant in respect of the suit

property, which was also pending for adjudication. The judgment

relied upon by learned advocate for the proposed defendant,

considering the facts of the present case, would not be helpful to

the proposed defendant.

C/SCA/3405/2020 JUDGMENT DATED: 28/09/2021

20. There is no absolute rule that transferee pendente lite without

leave of the court should, in all cases, be allowed to join and

contest the pending suits. Section 52 of the Transfer of Property Act

envisaged that " During the pendency in any court having authority

within the limits of India.... of any suit or proceeding which is not

collusive and in which any right to immovable property is directly and

specifically in question, the property cannot be transferred or

otherwise dealt with by any party to the suit or proceeding so as to

affect the rights of any other party thereto under the decree or order

which may be made therein, except under the authority of the court

and on such terms as it may impose."

21. The Court below has failed to consider that addition of the

proposed defendant would result into causing serious prejudice to

the plaintiff and the substitution or the addition of a new cause of

action would only widen the issue which requires to be adjudicated

in the suit.

22. In addition to that, another Special Civil Suit No.143 of 2012

for the suit property was also filed by the plaintiff against the

proposed defendant, which is also pending. Permitting proposed

defendant for the joining of the party would embarrass the plaintiff

in the issues not germane to the suit would require to be raised.

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The mere fact that fresh litigation can be avoided is no ground to

invoke the power under the rule in such of cases.

23. Therefore, this court is of the considered view that the court

below is wrong in concluding that the proposed defendant is a

necessary or proper party to be added as defendant No.3 in the suit

instituted by the plaintiff by allowing the application below

Exh.101.

24. Accordingly, this petition is hereby allowed by quashing and

setting aside the order dated 16.01.2020 passed by the learned 2 nd

Additional Senior Civil Judge, Gandhinagar in Special Civil Suit

No.171 of 2006.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) SUYASH