Gujarat High Court

Jaysukhlal Shantilal Satikuwar vs Bhupesh Hargovindbhai Dhakan on 17 April, 2023

Bench: Sandeep N. Bhatt

     C/SCA/6470/2023                                   ORDER DATED: 17/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6470 of 2023

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                       JAYSUKHLAL SHANTILAL SATIKUWAR
                                   Versus
                       BHUPESH HARGOVINDBHAI DHAKAN
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Appearance:
CHETANKUMAR V DARJI(9309) for the Petitioner(s) No. 1,2,3,4,5
KRUPABEN B DHORDA(9696) for the Petitioner(s) No. 1,2,3,4,5
 for the Respondent(s) No.
10,11,12,13.1,13.2,14,15.1,15.2,15.3,15.4,15.5,16,17.1,17.2,18,19,2,20,21,22
,3,4.1,4.2,5,6,7,8,9
MR JAMSHED KAVINA(11236) for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 17/04/2023

                                ORAL ORDER

1. This petition is filed challenging the order

passed below Exh.20 in Regular Civil Suit No.96 of 2022

by the learned Additional Senior Civil Judge, Palitana on

10.3.2023 by the original defendant no.3.1 to 3.5 as the

learned trial Court has allowed the application filed at

Exh.20 by the present respondent no.1-original plaintiff to

implead the purchaser of the land in question as party

in the suit which is filed by the plaintiff for specific

performance of the agreement.

C/SCA/6470/2023 ORDER DATED: 17/04/2023

2. The brief facts of the case are such that the

present respondent no.1 has filed the suit for specific

performance of the agreement between the parties of the

suit; that as there is violation of the terms of the

agreement, the plaintiff has filed the suit for getting

share of the properties and also possession of the said

properties, which is numbered as RCS No.96 of 2022. In

that suit, during the pendency of the proceedings,

original plaintiff filed application at Exh.20 on 15.10.2022

to implead the purchaser of some of the properties as

party, who are respondent nos.4 to 22 herein which

application was decided by the impugned order by the

learned trial Court by observing that the purchaser of

the land in question are necessary and proper parties as the subject matter of the suit is also related to the

same.

3. Being aggrieved and dissatisfied with the same,

the defendant nos.3.1 to 3.5 have preferred this petition

before this Court by challenging the impugned order for

adding party.

4. Heard learned advocate Mr.Chetan Darji for

the petitioners and learned advocate Mr.S.P.Majmudar

C/SCA/6470/2023 ORDER DATED: 17/04/2023

assisted by learned advocate Mr.Jamshed Kavina for the

respondents.

4.1 Learned advocate Mr.Darji has drawn my

attention to the prayer clause of the plaint of the suit in

question and submitted that when the prayer pertains to

the partition of the properties or getting share in the

properties, the presence of purchasers of some of the

properties who are respondent nos.4 to 22 are not

required as they cannot be considered as neither

necessary nor proper parties. He has referred to order I

Rule 10 of the Code of Civil Procedure (`CPC' for short)

and has submitted that the learned trial Court has

committed error by permitting to add respondent no.4 to 22 as party in the suit proceedings filed by the present

respondent no.1. He has further drawn my attention

towards Section 19 of the Specific Relief Act and has

submitted that relief against parties and persons claiming

under them by subsequent title can be granted. He

submitted that in this case, the sale deed which is

executed in favour of the newly added party i.e.

respondent nos.4 to 22 are much prior to the agreement

executed in favour of the present respondent no.1. He

C/SCA/6470/2023 ORDER DATED: 17/04/2023

has further drawn my attention towards Section 3 of the

Transfer of Property Act and relying on that, he has

submitted that the learned trial Court has not properly

dealt with this aspect.

4.2 Lastly, he has relied on the decision of the

Apex Court in the case of Kasturi V/s Iyyamperumal

and Others, reported in AIR 2005 SC 2813, more

particularly, on paragraphs 6,8,10,14,15 and 18 and

submitted that the trial Court has committed not only

error but grave error which caused prejudice to the

present petitioners and therefore interference is called for

by exercising supervisory jurisdiction under Article 227 of

the Constitution of India by this Court. He has drawn

the attention of this Court towards the earlier suit filed by the present respondent no.1 which was withdrawn

subsequently and therefore he has submitted that once

the suit is withdrawn for the same property that too

unconditionally, the second suit for the same property

cannot be filed.

5. Per Contra, learned advocate Mr.Majmudar has raised serious objection about the contention raised by

C/SCA/6470/2023 ORDER DATED: 17/04/2023

the present petitioners and has submitted that the trial

Court has not committed any error and has given proper

and appropriate reasoning for allowing the impugned

application. Learned advocate Mr.Majmudar has dealt

with the contention raised by the petitioners by

submitting that whether the second suit is maintainable

or not cannot be decided while deciding the petition

whereby the order passed under Order I Rule 10 of the

CPC for impleading of the party is challenged and if the

petitioners have any grievance, it can be raised by

making appropriate application at appropriate stage in

the suit but not in the present proceedings and therefore

such submission made at bar by the petitioners is

misconceived considering the subject matter of the present petition.

5.1 He has further relied on the judgment of the

Apex Court in the case of Robin Ramjibhai Patel V/s

Anandibai Rama @ Rajaram Pawar and Others, reported in 2018(15) SCC 614 in support of his contentions and

submitted that the judgment which is relied on by the

petitioners in the case of Kasturi (supra) is also

considered by the Apex Court in this case and therefore

C/SCA/6470/2023 ORDER DATED: 17/04/2023

he has submitted that as there is no apparent error

much less grave error which caused any prejudice to the

right of the present petitioners. Therefore, he prayed that

no case is made out for exercising supervisory

jurisdiction under Article 227 of the Constitution of

India.

6. I have considered the rival submissions made

at the bar and perused the papers.

7. During the course of hearing, I raised a query

to the learned advocate for the petitioners that how the

petitioners who are the original defendant nos.3.1 to 3.5

under the suit proceedings can challenge the order of

impleading the party which application is filed by the plaintiffs to implead the purchasers of some of the land

in question which was allowed by the learned trial

Court, to which learned advocate for the petitioners could

not give satisfactory reply, however, he tried to answer

the query by stating that since the present defendant

nos.3.1 to 3.5 have sold the land in question by way of

registered sale deed to the subsequent purchaser i.e.

respondent nos.4 to 22 much prior to the agreement in

C/SCA/6470/2023 ORDER DATED: 17/04/2023

question and since he is party in the suit proceedings,

he can challenge any order passed in the suit

proceeding. Without giving much consideration to that

submission made at the bar, prima facie, it transpires

that the present petitioners have no reason or interest in

the said property which they have already sold as per

his submission in the year 2018 by way of registered

sale deed to the subsequent purchasers. Therefore,

considering this aspect also, there is no justifiable reason

for preferring the present petition by respondent nos.3.1

to 3.5 who has already pocketed the money by executing

sale deed.

8. On perusal of the impugned order passed by

the learned trial Court, it transpires that the learned trial Court has rightly dealt with the said application by

considering that whether the person who is impleaded at

the behest of the plaintiff in the suit proceedings is

necessary and proper party and whether the outcome of

the suit will affect newly added party or not.

Considering the fact that the sale deed is already

executed in favour of the present respondent nos.4 to 22

by the present petitioners in the year 2018 and

C/SCA/6470/2023 ORDER DATED: 17/04/2023

considering the fact that the said transaction and the

subject matter of the present suit is for the identical

properties, it goes without saying that in absence of the

newly added party i.e. respondent nos.4 to 22, the Court

cannot adjudicate the suit proceedings effectively and the

purpose of the suit will become fruitless. Further, it also

transpires that the newly added party is not only proper

party but also necessary party considering the facts and

circumstances of the present case. The submission made

at the bar regarding Section 19 of the Specific Relief Act

and Section 3 of the Transfer of Property Act and also

the judgment in the case of Kasturi (supra), which is

heavily relied by the learned advocate for the petitioner

is not helpful in the facts and circumstances of the present case of the present petitioner, more particularly,

when the impleaded party who approached the learned

trial Court is subsequent purchaser. In the present case,

when the plaintiff himself has applied for impleading

subsequent purchasers as party and that also in the suit

for specific performance filed by the plaintiff, the

judgment of the Apex Court in the case of Robin Ramjibhai Patel (supra) cited by learned advocate

Mr.Majmudar is squarely applicable to the facts of the

C/SCA/6470/2023 ORDER DATED: 17/04/2023

present case. Paragraphs 7,8 and 9 of the same reads as

under:

"7. As it appears from the aforesaid paragraph this Court accepted the status of domunis litus of the plaintiff and proceeded to hold that if the plaintiff did ot want to joint the rival claimants as defendant in the pending suit, the risk was totally of the plaintiff and he cannot be forced to join them as party-defendant.

8. In the aforesaid context, this Court also considered the provisions of Order 1 Rule 10 CPC and in para 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that:

"7. .... In equity as well as in law, the contract constitutes rights and also regulated the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."

C/SCA/6470/2023 ORDER DATED: 17/04/2023

9. In our considered opinion, the judgment of the three- Judge Bench in Kasturi case recognizes this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors."

9. At this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment

Craft V/s 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 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

C/SCA/6470/2023 ORDER DATED: 17/04/2023

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:-

"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

C/SCA/6470/2023 ORDER DATED: 17/04/2023

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 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

C/SCA/6470/2023 ORDER DATED: 17/04/2023

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

10. In view of the above discussion, I am of the

opinion that there is no error committed by the learned

C/SCA/6470/2023 ORDER DATED: 17/04/2023

trial Court in passing the impugned order. On the

contrary, the learned trial Court has dealt with the issue

in very proper manner and by giving proper reasoning

and this Court has very limited jurisdiction in interfering

with the impugned order under Article 227 of the

Constitution of India. Otherwise also, this Court is the

opinion that the petitioners have no reason to challenge

the impugned order and this petition is required to be

dismissed.