Gujarat High Court

Ramilaben D/O Bhavanbhai ... vs Ishwarbhai Dayarambhai Patel ... on 17 April, 2023

Bench: Sandeep N. Bhatt

     C/SCA/4840/2023                                ORDER DATED: 17/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4840 of 2023

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RAMILABEN D/O BHAVANBHAI KOLADIYA AND W/O VINUBHAI HARIBHAI
                         MALAVIYA
                          Versus
       ISHWARBHAI DAYARAMBHAI PATEL THROUGH HEIRS
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Appearance:
MR VIRAL K SALOT(3500) for the Petitioner(s) No. 1,2,3
 for the Respondent(s) No.
1,10,11,1.1,12,1.2,13,14,15,16,16.1,16.2,16.3,16.4,17,18,18.1,18.1.1,18.1.2,1
8.1.3,18.2,18.3,19,2,20,3,4,6,7,8,9
AADITYA D BHATT(8580) for the Respondent(s) No. 5
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 17/04/2023
                              ORAL ORDER

1. The present petition is preferred by challenging the

impugned order dated 15.09.2022 passed below Exh.222

application in Regular Civil Suit No.510 of 2003 by the

learned Principal Senior Civil Judge, Surat to implead

the present petitioners as parties under the provision of

Order I Rule X of the Civil Procedure Code, 1908, which

is rejected by the Trial Court.

2.1. Brief facts of the case are as such that the land

bearing Block No. 58 (Original Survey No. 60, 61, 68, 69

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and 70) of village Kumbhariya, Sub. District - Choryasi,

Dist. Surat was transferred to defendant No.18 i.e.

deceased Chandanben D/o Dayarambhai Maganbhai by

registered gift deed dated 19.11.1969 and since then

Chandanben D/o Dayarambhai Maganbhai became the

absolute owner and occupier of the said land. It is

further averred in the petitioner as a part of facts of

the case that Chandanben D/o Dayarambhai Maganbhai

and her husband Thakorbhai Bhulabhai has agreed to

sale the said property to petitioner Nos.1 and 2 by an

agreement to sale dated 04.07.2003 and respondent No.18

has also executed development agreement in favour of

the petitioner No. 3. It is further the case that in the

year 1996, one Vasantbhai Ishwarbhai Patel (Orig.

Plaintiff / Respondent No. 20 herein) and Arvindbhai

Naranbhai Patel (Orig. Defendant & Respondent No. 4

herein), and Hemang Kalyanbhai Patel (Orig. Defendant

No. 15 & Responden No. 15 herein), by concocted

document got mutated their name in the revenue record

of subject land vide entry No.1464. When Chandanben

C/SCA/4840/2023 ORDER DATED: 17/04/2023

came to know about the said document, she has filed

criminal complaint against them, wherein charge-sheet is

also filed and ultimately Criminal Case No.100122 of

2002 came to be registered. It is also the facts of the

case that thereafter, said entry No.1464 came to be

cancelled. Thereafter, the Respondent No. 20 i.e.

Vasantbhai Ishwarbhai Patel, with a view to create cloud

over the suit property filed a Regular Civil Suit No.510

of 2003 before the Civil Judge (S.D) Surat for

cancellation of gift deed dated 19.11.1969 and also seek

declaration qua the shares of the other defendants in the

suit property. It is further the case that defendant

Nos.18 and 19 i.e. Chandanben and Thakorbhai filed

their appearance and also filed written statement denying

all the allegations and averments made in the plaint.

The learned Trial Court has granted ad-interim

injunction in favour of the Respondent No.20 (Original

Plaintiff) and against Defendant Nos.18 & 19 by allowing

below Exh.5 application vide an Order dated 15.02.2006.

C/SCA/4840/2023 ORDER DATED: 17/04/2023

2.2 It is further the fact of the case that thereafter,

Chandanben and her family members have filed Special

Civil Suit No.269 of 2006 for partition of the other

properties (Block No. 58 not included), with the help of

the present petitioners. However, behind the back of the

present petitioners, Chandanben and her family members

have withdrawn the above suit on 18.05.2013 and have

also tried to settle Regular Civil Suit No.510 of 2003 by

consenting for cancellation of gift deed, and therefore, the

present petitioners have filed Special Civil Suit No.717 of

2014, before the Principal Senior Civil Judge, Surat,

wherein entire transaction and events have been

narrated. Further, in the said Suit No. 717 of 2014, the

defendants have filed application under the provisions of

Order 7 Rule 11 of the Code of Civil Procedure, 1908

and the learned Trial Judge without appreciating the

facts rejected the plaint mainly on the ground that

injunction is operated in Civil Suit No.510 of 2003 and

therefore, decree for specific performance cannot be

granted. Thereafter, the present petitioners have

C/SCA/4840/2023 ORDER DATED: 17/04/2023

preferred First Appeal No.1752 of 2021, which is 2021,

pending for final disposal. In the meantime, the

petitioners have filed application under Order I Rule 10

of the Code of Civil Procedure, 1908 on 04.07.2015,

requesting the learned Trial Judge that if the decree as

prayed for is passed, the rights of the petitioners is

highly jeopardized, and therefore, they are necessary and

proper party.

2.3 It is further the fact of the case that during

pendency of the said application Exh. 222, the

respondents have produced the compromise purshis and

requested the learned Trial Judge to pass consent decree.

The said purshis has been objected by the present

petitioners and the hearing of that pursis was differed.

Thereafter, below Exh.222 application is decided on

15.09.2022 and subsequently the suit i.e. Regular Civil

Suit No.510 of 2003 is also disposed of in terms of

compromise by order dated 12.11.2022 in Lok Adalat.

C/SCA/4840/2023 ORDER DATED: 17/04/2023

2.4 Therefore, the present petition is filed under Article

227 of the Constitution of India.

3. Heard learned senior advocate Mr. Dhaval C. Dave

assisted by Mr. Viral K. Salot for the petitioners.

4.1 Learned senior advocate Mr. Dave for the

petitioners has submitted that additional affidavit is also

filed in view of the earlier order dated 20.03.2023 passed

by this Court. He has strongly relied on the fact that

the present petitioners are interested in the said

property and the document by way of agreement to sale

is executed in his favour by Chandanben. He has further

submitted that the suit is preferred by respondent No.20

herein who is original plaintiff in Regular Civil Suit

No.510 of 2003, which is against the declaration of the

cancellation of gift deed dated 19.11.1969 and such suit

is itself filed at belated stage. He has further submitted

that the petitioners have also preferred the Special Civil

Suit No.717 of 2014, which was rejected under the

provisions of Order VII Rule 11 of the C.P.C. on the

C/SCA/4840/2023 ORDER DATED: 17/04/2023

very strange ground that the interim injunction is

operated in the Regular Civil Suit No.510 of 2003, and

therefore, the decree for specific performance as prayed

in the Special Civil Suit No.717 of 2014 cannot be

granted. He has further submitted that thereafter, that

order is passed in Special Civil Suit No.717 of 2014

under the provisions of Order VII Rule 11 of the C.P.C.

by way of First Appeal No.1752 of 2021 which is

pending for disposal.

4.2 He has strongly relied on the provisions of Order I

Rule 10 of the C.P.C. and has submitted that the

petitioners have apprehension that the respondent No.20

and defendants will enter into compromise with a view

to defeat the legitimate right of the present petitioners.

He has replied for impleading him as a party in the

suit by making application on 4.7.2015 under Order I

Rule 10 of the C.P.C., however, the said application is

decided on 15.9.2022 and thereafter, he has submitted

that as apprehended by him, the said suit is

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compromised by way of consent terms before the Court

concerned which is decided by order dated 12.11.2022 in

Lok Adalat, and therefore, he has submitted that though

petitioners are having interest in the said property,

otherwise the petitioners can be termed as necessary and

proper party in the suit proceedings. He has drawn my

attention towards the impugned order passed by the

learned Trial Court below Exh.222 and has submitted

that the Trial Court has not given proper and correct

reasons while deciding the application and the said

application is required to be decided by keeping in mind

the provisions of Order I Rule 10 of the C.P.C. He has

further drawn my attention that the Trial Court has not

properly considered the fact that the petitioners are

having direct interest in the property in question and

therefore, they should be considered as necessary and

proper party in the facts and circumstances of the case,

and therefore, he has prayed that the present appeal is

required to be allowed.

C/SCA/4840/2023 ORDER DATED: 17/04/2023

5.1 I have considered the submissions made at the Bar

by learned advocate for the petitioners. I have also

perused the impugned order passed by the learned Trial

Court under the provisions of Order I Rule 10 of the

C.P.C., which reads as under:-

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 throught 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

C/SCA/4840/2023 ORDER DATED: 17/04/2023

name of any person who ought to have been joinded,

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

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 2 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. 3

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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

any pleader."

5.2 The fact remains that respondent No.20 herein is

the original plaintiff who has filed the suit for

cancellation of the gift deed dated 19.11.1969 executed by

way of Regular Civil Suit No.510 of 2003. It also

transpires from the record that interim injunction is

granted by the Trial Court in favour of the respondent

No.20 (Original Plaintiff), which is against defendant

Nos.18 & 19. It also transpires from the record that

defendant Nos.18 & 19 in that suit has executed

agreement to sale in favour of the present petitioners on

4.7.2003 who are third parties in the said suit and have

filed the application below Exh.222 to implead himself as

parties. It also transpires from the record that the

present petitioners have preferred Special Civil Suit

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No.717 of 2014, which was dismissed by the Trial Court

under the provisions of Order VII Rule 11 of the C.P.C.

mainly on the ground that no relief can be granted for

the said agreement as the interim injunction is operated

in the Regular Civil Suit No.510 of 2003. Being

aggrieved and dissatisfied with the same, the petitioners

herein have preferred First Appeal No.1752 of 2021,

which is still pending for final adjudication before this

Court.

5.3 I have considered the fact that the petitioners are

having limited interest in the property in question by

way of agreement to sale executed in the year 2003 and

the suit is filed in the year 2014 for the specific

performance of the agreement and was decided in the

year 2021 and appeal is also preferred in the year 2021.

It is well settled principle that the plaintiff of the suit

is dominus litis and the plaintiff can choose party and

in certain cases the Court can exercise the power under

Order I Rule 10 of the C.P.C. by adding party to whom

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the Court thinks necessary and proper to adjudicate the

dispute between the parties for which the suit is filed.

5.4 It is also necessary to refer that the Court has

recorded reasons in para 7 of the impugned judgment

and has considered the facts in totality and hence, come

to the conclusion that the present petitioners can neither

be considered as proper nor necessary party for deciding

the present suit proceeding in effective way and pass

such discretionary order, which is otherwise in

consonance with the record available with the Trial

Court, and I found that the Trial Court has though not

considered the aspect of dominus litis, which is also

required to be kept in mind and more particularly, the

suit is of the year 2003 and the application is filed in

the year 2015 by the present petitioners after filing of

the suit in the year 2014, which is also required to be

noted with. At the relevant point of time, the petitioners

have exhosted his remedy by way of filing separate suit,

which pertains to the order passed in that suit, and now

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the First Appeal is pending for adjudication which will

be adjudicated on its own merits, considering all the

above aspects and considering the judgment of the Apex

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

Goel reported in (2022) 4 SCC 181, this Court while

exercising the powers under Article 227 of the

Constitution of India does not act as appellate authority

and cannot re-appreciate, the only thing the Court can

exercise the jurisdiction in nature of correctional

jurisdiction to set aside grave dereliction of duty or

flagrant abuse, or violation of fundamental principle of

law and justice and even the High Court cannot

substitute its own views on merits and at this stage, it

is required to refer to the judgment of the Apex Court

in the case of Garment Craft (supra), 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

C/SCA/4840/2023 ORDER DATED: 17/04/2023

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 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:-

C/SCA/4840/2023 ORDER DATED: 17/04/2023

"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 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

C/SCA/4840/2023 ORDER DATED: 17/04/2023

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 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

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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 facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

5.5 Further, in the case of M/s Puri Investments V/s M/

s Young Friends and Co. & Ors. reported in 2022 Law

Suit (SC) 306, it is held that supervisory jurisdiction can

be exercised if finding of fact would be perverse (1)

erroneous on account of non-consideration of material

evidence; (2) conclusion contrary to evidence; (3) based on

inferences impermissible in law and re-appreciation of

evidence is not permissible.

5.6 Keeping all the principles in mind and considering

the impugned order which is otherwise found just and

proper in the facts and circumstances of the present

C/SCA/4840/2023 ORDER DATED: 17/04/2023