Rupinbhai Bharatbhai Divecha vs Legal Heirs Of Decd. Chandulal ...
2023 Latest Caselaw 2711 Guj

      C/SCA/380/2021                                            ORDER DATED: 03/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 380 of 2021

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                  RUPINBHAI BHARATBHAI DIVECHA
                              Versus
      LEGAL HEIRS OF DECD. CHANDULAL GAURISHANKAR THAKAR
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
for the Respondent(s) No. 3,4,5,6
MR VISHAL C MEHTA(6152) for the Respondent(s) No. 1,1.1,2,2.1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 03/04/2023
                                    ORAL ORDER

1. The present petition is filed by being aggrieved and

dissatisfied with the impugned order dated 11.11.2020

passed below Ex.21 in Regular Civil Suit No.411 of 2019,

by which the trial Court has partly allowed the

application filed by the respondent Nos.1.1 and 2.1,

which is filed for impleadment of third party under the

provisions of Order I Rule 10 of the Code of Civil

Procedure, 1908.

2.1 Brief facts of the case are as such that the

petitioner and others had instituted Regular Civil Suit

C/SCA/380/2021 ORDER DATED: 03/04/2023

No.411 of 2019 before learned Principal Senior Civil

Judge, Una, for declaration to the effect that the part of

the suit property, which is in dilapidated condition, may

be permitted to be pulled down by the plaintiffs and

that the defendants may be injuncted from causing any

disturbance for the same. On 07.10.2019, the learned

Judge has granted the application below Exh.5 moved in

Regular Civil Suit No.411 of 2019 and directed that if

the petitioner wants to pull down the construction, the

defendants shall not cause any obstruction for the same.

2.2 It is further the case of the petition in the present

petition that the respondent Nos.1.1 and 2.1 filed an

application below Exh.18 under Section 151 of the Code

of Civil Procedure, 1908, inter alia, stating that the

aforesaid order passed below Exh.5 may be stayed

recalled and it may be declared that the said order will

not be applicable to them and aforesaid two persons are

third parties applicants and they have also gave an

application below Exh.21 for being joined as parties in

C/SCA/380/2021 ORDER DATED: 03/04/2023

Regular Civil Suit No.411 of 2019 under Order I Rule

10 of the Code of Civil Procedure, 1908. Thereafter, the

learned Additional Senior Civil Judge, Una, by order

dated 08.09.2020 has partly allowed the aforesaid

application below Exh.18 moved Regular Civil Suit

No.411 of 2019 and directed that the status-quo be

maintained with regard to the suit property in question

and no demolition be done. Impugned order is

purportedly passed under section 151 of the Code of

Civil Procedure, 1908. Impugned order is passed on the

application below Exh.18 moved by the third parties, who

are not yet joined as parties in RCS No.411 of 2019.

Thereafter, the petitioner filed an application below

Exh.24 to vacate the impugned order and also filed reply

below Exh.18 and 21 applications. Thereafter, learned

Judge, Una by the order dated 16.09.2020 has rejected

the application below Exh.24 filed by the petitioner.

2.3 Thereafter, being aggrieved by the aforesaid orders

below Exh.18 and 24, the petitioner has preferred Special

C/SCA/380/2021 ORDER DATED: 03/04/2023

Civil Application No.13243 of 2020, which came to be

partly allowed by this Court vide order dated 02.11.2020,

whereby this Court remanded the matter back to learned

trial Court to decide application below Exh.18 as well as

the joining party application of the third party, which

was filed below Exh.21. Thereafter, the learned trial

Court vide order dated 11.11.2020 has allowed the

application below Exh.21 and has joined the third parties

as parties in Regular Civil Suit No.411 of 2019.

Thereafter, the learned trial Judge by separate order of

the same date i.e. 11.11.2020 allowed application below

Exh.18 moved in Regular Civil Suit No.411 of 2019 and

has granted status-quo in the matter.

2.4 Hence, the present petition is filed.

3. Heard learned advocate Mr. S.P. Majmudar with

Mr. H.J. Karathiya, learned advocate for the petitioner

and learned senior advocate Mr. Mehul S. Shah with Mr.

Vishal C. Mehta, learned advocate for the respondent

C/SCA/380/2021 ORDER DATED: 03/04/2023

Nos.1, 1.1, 2 and 2.1.

4.1 Learned advocate Mr. S.P. Majmudar for the

petitioner has submitted that the impugned order passed

by the trial court is highly erroneous as the applicants

are neither necessary nor proper party in the suit

proceedings as the original tenants have expired and the

applicants in the application which is filed under Order I

Rule 10 of the Code of Civil Procedure at Exh.21 cannot

be considered as a necessary party. He has further

submitted that the trial court has not properly dealt

with the contention raised at the bar by the present

petitioner and as the material available on the record

and has erroneously found that the proposed parties are

necessary parties in the suit proceeding by allowing the

application filed under Order I Rule 10 of the CPC. He

has further submitted that the trial Court has not

properly considered the tax receipt produced by third

parties and it is clear that the owner is one Shri

Vijaybhai, who has no connection with the suit property

C/SCA/380/2021 ORDER DATED: 03/04/2023

in question and he has further submitted that the

location shown in that receipt is also different. He has

further submitted that the petitioner has demines litis

and therefore, it is against the wish of the petitioner,

and as the parties cannot be impleaded by exercising

power under Order I Rule 10 of the CPC.

4.2 Her has further submitted that the trial Court has

not properly appreciated the documentary evidence

produced on the record and has wrongly decided the

application below Exh.21 by exercising power under

Order I Rule 10 of the CPC, and therefore, the

impugned order passed by the trial Court is apparently

erroneous and illegal and is required to be quashed and

set aside by excising the powers under Article 226 of the

Constitution of India.

5.1 Per contra, Mr. Mehul S. Shah, learned senior

advocate appearing for the respondent Nos.1, 1.1, 2 and

2.1 has submitted that the trial Court has rightly

C/SCA/380/2021 ORDER DATED: 03/04/2023

considered the submissions made at the Bar and has

also rightly considered the material available in the case.

He has submitted that the proposed parties - contesting

respondents herein have approached the trial Court by

filing the application under Order I Rule 10 of the CPC

by claiming that the suit shops are occupied by such

parties as tenants of the said premises, and therefore,

they have prayed themselves to implead as the defendant

Nos.2 and 3 as party defendant in the suit filed by the

present petitioner.

5.2 He has submitted that the trial Court has rightly

considered the judgments in the cases of (i) State of

Assam Versus Union of India and Others reported in

2011 (3) G.L.H. 287 SC, (ii) Kankaltadas and Others

Versus Nabakumardas and Others reported in 2018 (2)

G.L.H. 253 SC and (iii) M/s Aliji Monoji & Co. Versus

Lalji Mawji and Others reported in AIR 1997 SC 64. He

has further submitted that the trial Court has also

rightly considered the judgment cited at the Bar by the

present petitioner - original plaintiffs, and thereafter,

C/SCA/380/2021 ORDER DATED: 03/04/2023

came to the conclusion that since from the document,

which is produced at mark 4/1, where there is specific

averment that there are said suit shops and also two

tenants viz., Chandulal Gaurishankar Thakar and

Jamnadas Harilal Gandhi and the proposed defendant

Nos.2 and 3 are heirs of original tenants. He has further

submitted that considering documents at mark 19/7, it

also confirms the said aspect and accordingly, the

contesting respondents are necessary and proper party.

5.3 He has further submitted that the judgment in the

case of Gujarat Ambuja Cements Ltd. Versus Govindbhai

Lakhmanbhai Gahde reported in 1996 (2) GCD 641, the

case is squarely covered to the case of present petitioner,

and therefore, the petitioner being necessary and proper

party, the trial Court has rightly passed the order below

Exh.21 application by allowing the application, and

therefore, he has submitted that the present petition

deserves to be dismissed as no ground is made out

under Article 227 of the Constitution of India in view of

C/SCA/380/2021 ORDER DATED: 03/04/2023

the judgment of the Apex Court in the case of Garment

Craft Vs Prakash Chand Goel reported in (2022) 4 SCC

181, whereby the Apex Court has said that supervisory

jurisdiction of High Court when to be exercised, more

particularly, paragraph 15 to 17, which are relevant.

6.1 I have considered the rival submissions made at the

bar. I have also perused the materials records available

on the record. From the document considered by the trial

Court produced at mark 4/1, which is sale deed, it

clearly transpires and is averred in para 11 about the

tenancy rights of the elders of the proposed defendant

Nos.2 and 3. Further, the documents produced at mark

19/7 also supports the recital in the said document and

in para 1 of that document, there is averment about

tenancy right of two shops.

6.2 Further, I have considered Order I Rule 10 of the

Civil Procedure Code, 1908, which reads as under:-

"Order I Rule 10 of the Code of Civil Procedure:-

C/SCA/380/2021 ORDER DATED: 03/04/2023

10. Suit in name of wrong plaintiff.--(1) Where a suit

has been instituted in the name of the wrong person

as plaintiff or where it is doubtful whether it has been

instituted in the name of the right plaintiff, the Court

may at any stage of the suit, if satisfied that the suit

has been instituted through a bona fide mistake, and

that it is necessary for the determination of the real

matter in dispute so to do, order any other person to

be substituted or added as plaintiff upon such terms as

the Court thinks just.

(2) Court may strike out or add parties.--The Court

may at any stage of the proceedings, either upon or

without the application of either party, and on such

terms as may appear to the Court to be just, order

that the name of any party improperly joined, whether

as plaintiff or defendant, be struck out, and that the

name of any person who ought to have been joined,

whether as plaintiff or defendant, or whose presence

before the Court may be necessary in order to enable

the Court effectually and completely to adjudicate upon

and settle all the questions involved in the suit, be

C/SCA/380/2021 ORDER DATED: 03/04/2023

added.

(3) No person shall be added as a plaintiff suing

without a next friend or as the next friend of a

plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.--

Where a defendant is added, the plaint shall, unless

the Court otherwise directs, be amended in such

manner as may be necessary, and amended copies of

the summons and of the plaint shall be served on the

new defendant and, if the Court thinks fit, on the

original defendant (5) Subject to the provisions of the 1

[Indian Limitation Act, 1877 (XV of 1877)], section 22,

the proceedings as against any person added as

defendant shall be deemed to have begun only on the

service of the summons.

10A. Power of Court to request any pleader to address

it.--The Court may, in its discretion, request any

pleader to address it as to any interest which is likely

to be affected by its decision on any matter in issue in

any suit or proceeding, if the party having the interest

which is likely to be so affected is not represented by

C/SCA/380/2021 ORDER DATED: 03/04/2023

any pleader."

6.3 Further, the proposed defendant Nos.2 and 3, being

heirs of original tenants, is necessary and proper party

and the judgments, which are cited at the bar support

the case of the present respondents, and therefore, this

Court finds that there is no illegal or irregularity

committed by the trial Court in passing the impugned

order and has given cogent and convincing reasons for

allowing the application filed under Order I Rule 10 of

the CPC for impleding defendant Nos.2 and 3 as a party

in the suit, and therefore, no illegality or irregularity is

committed by the trial Court in passing the order below

exhibit 21 in the said suit.

6.4 This Court finds no reason to interfere in the

impugned order passed by the trial Court by excising my

limited scope of jurisdiction under Article 227 of the

Constitution of India, in view of the judgment of the

Apex Court in the case of Garment Craft V/s Prakash

C/SCA/380/2021 ORDER DATED: 03/04/2023

Chand Goel reported in (2022) 4 SCC 181, whereby the

Apex Court has said that supervisory jurisdiction of High

Court when to be exercised, more particularly, paragraph

15 to 17, which read as under:

"15. Having heard the counsel for the parties, we are

clearly of the view that the impugned order is

contrary to law and cannot be sustained for several

reasons, but primarily for deviation from the limited

jurisdiction exercised by the High Court under Article

227 of the Constitution of India. The High Court

exercising supervisory jurisdiction does not act as a

court of first appeal to reappreciate, reweigh the

evidence or facts upon which the determination under

challenge is based. Supervisory jurisdiction is not to

correct every error of fact or even a legal flaw when

the final finding is justified or can be supported. The

High Court is not to substitute its own decision on

facts and conclusion, for that of the inferior court or

tribunal. The jurisdiction exercised is in the nature of

correctional jurisdiction to set right grave dereliction of

duty or flagrant abuse, violation of fundamental

principles of law or justice. The power under Article

C/SCA/380/2021 ORDER DATED: 03/04/2023

227 is exercised sparingly in appropriate cases, like

when there is no evidence at all to justify, or the

finding is so perverse that no reasonable person can

possibly come to such a conclusion that the court or

tribunal has come to. It is axiomatic that such

discretionary relief must be exercised to ensure there

is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article

227, this Court in Estralla Rubber v. Dass Estate (P)

Ltd. has observed:-

"6. The scope and ambit of exercise of power and

jurisdiction by a High Court under Article 227 of the

Constitution of India is examined and explained in a

number of decisions of this Court. The exercise of

power under this article involves a duty on the High

Court to keep inferior courts and tribunals within the

bounds of their authority and to see that they do the

duty expected or required of them in a legal manner.

The High Court is not vested with any unlimited

prerogative to correct all kinds of hardship or wrong

decisions made within the limits of the jurisdiction of

the subordinate courts or tribunals. Exercise of this

C/SCA/380/2021 ORDER DATED: 03/04/2023

power and interfering with the orders of the courts or

tribunals is restricted to cases of serious dereliction of

duty and flagrant violation of fundamental principles of

law or justice, where if the High Court does not

interfere, a grave injustice remains uncorrected. It is

also well settled that the High Court while acting

under this article cannot exercise its power as an

appellate court or substitute its own judgment in place

of that of the subordinate court to correct an error,

which is not apparent on the face of the record. The

High Court can set aside or ignore the findings of

facts of an inferior court or tribunal, if there is no

evidence at all to justify or the finding is so perverse,

that no reasonable person can possibly come to such a

conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant

had applied for the certified copy would show that the

counsel for the appellant was aware that the ex-parte

decree had been passed on the account of failure to

lead defence evidence. This would not, however, be a

good ground and reason to set aside and substitute

the opinion formed by the trial court that the

appellant being incarcerated was unable to lead

C/SCA/380/2021 ORDER DATED: 03/04/2023

evidence and another chance should be given to the

appellant to lead defence evidence. The discretion

exercised by the trial court in granting relief, did not

suffer from an error apparent on the face of the

record or was not a finding so perverse that it was

unsupported by evidence to justify it. There could be

some justification for the respondent to argue that the

appellant was possibly aware of the ex-parte decree

and therefore the submission that the appellant came

to know of the ex-parte decree only on release from

jail on 6th May 2017 is incorrect, but this would not

affect the factually correct explanation of the appellant

that he was incarcerated and could not attend the

civil suit proceedings from 6th October 2015 to 6th

May 2017. If it was felt that the application for

setting aside the exparte decree was filed belatedly,

the court could have given an opportunity to the

appellant to file an application for condonation of delay

and costs could have been imposed. The facts as

known, equally apply as grounds for condonation of

delay. It is always important to take a holistic and

overall view and not get influenced by aspects which

can be explained. Thus, the reasoned decision of the

trial court on elaborate consideration of the relevant

C/SCA/380/2021 ORDER DATED: 03/04/2023

facts did not warrant interference in exercise of the

supervisory jurisdiction under Article 227 of the

Constitution."

7. In view of the aforesaid, the present petition is

dismissed.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA