Sureshbhai Govindbhai Patel vs Pravinchandra Govindbhai Patel
2023 Latest Caselaw 2988 Guj

     C/SCA/1576/2023                               ORDER DATED: 18/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1576 of 2023

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                         SURESHBHAI GOVINDBHAI PATEL
                                    Versus
                       PRAVINCHANDRA GOVINDBHAI PATEL
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Appearance:
MR. KARTIK H. BHATT FOR NANAVATY ADVOCATES(1373) for the
Petitioner(s) No. 1
MR BHUSHAN B OZA(1072) for the Respondent(s) No. 8
MR J G VAGHELA(3971) for the Respondent(s) No. 10,11
MR JAMSHED KAVINA(11236) for the Respondent(s) No. 7
MR KETAN A DAVE(255) for the Respondent(s) No. 12.1,12.2
MR RAJA RAM BAJPAI(7188) for the Respondent(s) No. 10,11
MR SP MAJMUDAR(3456) for the Respondent(s) No. 7
MS E.SHAILAJA(2671) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 12,2,3,4,5,6
UNSERVED EXPIRED (N) for the Respondent(s) No. 9
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 18/04/2023
                                ORAL ORDER

1. The present petition is filed under the provisions of

Section 151 read with Section 94 (c)&(e) of the Code of

Civil Procedure, 1908 (hereinafter referred to as "the

Code" for short) by challenging the impugned order dated

06.01.2023 passed below Exh.199 application in Regular

Civil Suit No.55 of 2014 by the Trial Court - learned

Addl. Civil Judge, Bhayavadar, whereby the Trial Court

has rejected the above said application by imposing the

C/SCA/1576/2023 ORDER DATED: 18/04/2023

cost of Rs.1 lakh.

2. By way of the present petition, the petitioner

prayed for following prayers:-

"(A) YOUR LORDSHIPS MAY BE PLEASED to issue a

writ of certiorari or a writ in the nature of certiorari

and/or any other appropriate writ, order or directions quashing and setting aside the impugned order dated

06/01/2023 passed by learned Additional Civil Judge,

Bhayavadar in Exhibit-199 preferred in Regular Civil

Suit No.55 of 2014 (Annex "A") in the interest of

justice as well as direct the respondent no.7-Bhavesh

Ramanikbhai Sejani not to create any third party

rights in the suit land and restrain respondent no.7

and his agents from taking possession of the suit land

and not to disturb the possession of the petitioner of

the suit land;

(B) Alternatively YOUR LORDSHIPS BE PLEASED TO

quash and set aside the order 06/01/2023 passed by

learned Additional Civil Judge, Bhayavadar in Exhibit-

199 preferred in Regular Civil Suit no. 55 of 2014

(Annex. "A") and remand the matter back to the Ld.

Trial Court;

C/SCA/1576/2023 ORDER DATED: 18/04/2023

(C) During the pendency and final disposal of the

present petition, YOUR LORDSHIPS MAY BE

PLEASED TO direct the respondent no.7 to maintain

status quo and not to disturb the possession of the

petitioner of the suit land and stay the implementation

and execution of the impugned order dated 06/01/2023

passed by learned Additional Civil Judge, Bhayavadar

in Exhibit -199 preferred in Regular Civil Suit no. 55

of 2014: (Annex. "A")

(D) Pass any such other and/or further orders that

may be thought just and proper, in the facts and

circumstances of the present case."

3. Heard learned advocate Mr. Kartik H. Bhatt

appearing for Nanavaty Advocates for the petitioner,

learned advocate Ms. E. Shailaja for the respondent No.

1, learned advocate Mr. Jamshed Kavina for the

respondent No. 7, learned advocate Mr. Bhushan B. Oza

for the respondent No. 8, learned advocate Mr. J.G.

Vaghela for the respondent Nos.10 & 11, learned

advocate Mr. Ketan A. Dave for the respondent Nos.

12.1 & 12.2. Earlier, learned advocate Mr. Sandeep R.

C/SCA/1576/2023 ORDER DATED: 18/04/2023

Limbani was appearing for respondent Nos.2 to 6 and

thereafter, he has withdrawn his appearance and

thereafter, notice is served to respondent Nos.2 to 6 but

no appearance is filed on behalf of respondent Nos.2 to

6. respondent Nos.10 and 11 are heirs of respondent

No.9 as respondent No.9 is expired.

4. With consent of all the parties, the matter is taken

up for final disposal.

5.1 Learned advocate Mr Kartik H. Bhatt appearing for

Nanavaty Advocates for the petitioner has submitted that

the petitioner is original defendant No.1, who is having

share in the property in question being a co-parcenary

for the properties. He has further submitted that the

plaintiff, who happens to be one of the co-parcenary, has

filed the suit for partition of the property in question

and that the defendant No.7 in the suit has purchased

some of the suit properties from the defendant No.2 to 6

by way of registered sale dead and in this background,

C/SCA/1576/2023 ORDER DATED: 18/04/2023

earlier the plaintiff has not pressed exhibit 5 application

in view of the statement made by the different No.7 that

he will not transfer without the prior permission of the

Court and in this background, the present application

below exhibit 199 is filed by the present petitioner who

is original defended No.1 under the provisions of Section

151 read with section 94 (c)&(d) of the Code and has

submitted that there is apprehension for the possession

of the suit property in question that defendant No.7

through his agent or any other third party shall enter

into the possession of the property in question and

therefore, he has prayed specific prayer in the application

by praying that either defendant No.7 or his agent or

his accomplices shall not enter into the suit land in

question and shall not disturb the possession of

defendant defendant No.1.

5.2 He has further prayed that appropriate order may

be passed by keeping in mind the provisions of Section

151 read with section 94 (c)&(d) of the Code.

C/SCA/1576/2023 ORDER DATED: 18/04/2023

5.3 He has further submitted that the said application

is filed on 06.01.2023 and the learned Trial Court has

initially adjourned the matter on 04.04.2023 and has

recorded that the defendant No.7 is required to be heard,

and therefore, the matter will be heard on 04.04.2023. It

seems that thereafter, looking to the urgency involved

in the present matter, the petitioner, who has filed the

application at Exh.199, has pressed for early hearing of

the matter, and therefore, after earlier order, the Court

has passed further order below Exh.199 on 06.01.2023 by

disposing of application by passing non-reasoned and

unjustified order and has also imposed cost of Rs.1 lakh

on the present petitioner with a direction to deposit the

same to the Taluka Legal Service Committee, Upleta and

therefore, impugned order is totally unjust and improper

and the Court should not show such haste.

5.4 He has further submitted that in view of the

judgment of the Hon'ble Apex Court in the case of

C/SCA/1576/2023 ORDER DATED: 18/04/2023

Gajara Vishnu Gosavi versus Prakash Nanasaheb Kamble

and Ors. reported in 2009 10 SCC 654, law is well

settled that suit filed by the purchaser of the undivided

share of the co-parcener seeking declaration that plaintiff

was owner of the property in question and to restrain

defendant from obstructing possession of the plaintiff.

Suit is dismissed by High Court holding that plaintiff

was not in lawful possession of the suit property and

there was no partition. He has further submitted that in

the same judgment the Hon'ble Supreme Court has held

that purchase of undivided share in undivided suit has

right to sue for partition and pray for allotment of share

in joint family property but cannot claim for possession

of the property purchased by him, and therefore, he

praise that the learned Trial Court while passing the

impugned order has not acted in judicious manner and

has shown undue haste in deciding such application

without properly appreciating the materials evidence

available on record. He has further down attention of

this Court that the cost of Rs.1 lakh is imposed which

C/SCA/1576/2023 ORDER DATED: 18/04/2023

is also unjust and improper in the fats and

circumstances of the present case, and therefore, he

prays to pass necessary order by excising the powers

under article 227 of the Constitution of India

6. Learned advocate Mr. J.G. Vaghela for the

respondent Nos.10 & 11 has submitted that he is

representing the co-parcenary of the property and he is

supporting the case of the petitioner. In support of his

submission made by the petitioner, he has also relied on

the judgment of the Hon'ble Apex Court in the case of

Ramdas vs Sitabai & Ors. reported in 2010 (1) SCC 235

and has submitted that purchaser cannot have a better

title than what his vender had and an undivided share

of co-sharer may be a subject matter of sale, but

possession cannot be handed over to the vendee unless

the property is partitioned, and therefore, he has

submitted that the learned Trial Court has committed

gross error in deciding the application on the very same

day when the application is filed without calling any of

C/SCA/1576/2023 ORDER DATED: 18/04/2023

the advocates except hearing the learned advocate for

defendant No.1.

7. Learned advocate Mr. Ketan A. Dave for the

respondent Nos. 12.1 & 12.2 has submitted that he is

also supporting the case of the petitioner and has

submitted that appropriate order may be passed.

8.1 Per contra, learned advocate Mr. Jamshed Kavina

for the respondent No.7 has raised preliminary objection

that early appeal from order can be maintainable under

the provisions of Order XXXIII Rule 1 of the Code as

essentially, the application made is under the provisions

of Order 39 Rule 1 of the Code, and therefore, he has

relied on the judgment of Meghalaya High Court

rendered in Cr.(P) No.1 of 2016 dated 25.02.2016 and

has submitted that in view of this judgment, the petition

is not required to be entertained. In the alternative, on

merits also, he has submitted that he has purchased the

property in question on perusing the revenue record

C/SCA/1576/2023 ORDER DATED: 18/04/2023

where the name of the dependent Nos.2 to 6 were

reflected and he has bona fide purchaser without due

notice.

8.2 He has further submitted that in any case the

matter is required fulfledged trial and such application

cannot be entertained by the Trial Court and the Trial

Court has rightly rejected the application as the present

petitioner was insisting on for early hearing. Further, the

learned Trial Court has rightly observed that defendant

No.7 is effective party and without hearing defendant

No.7, no order can be passed, and therefore, he has

submitted that no case is made out to interfere in the

impugned order by exercising powers under article 227 of

the Constitution of India, however, on the aspect of cost

etc., he has fairly submitted that the Court may pass

appropriate order, which deems fit in the interest of

justice.

9.1 I have heard the respective parties. I have

C/SCA/1576/2023 ORDER DATED: 18/04/2023

considered the rival submissions made at the Bar. It

transpires that the suit is filed by the plaintiff for the

partition of the property which is pending since 2011

and new number is given as R.C.S. No.55 of 2014 after

call for the suit. The application is filed at exhibit 199

pursuant to some apprehension about the disturbance of

the possession in the suit land which may cause by the

different No.7 or his agent or servants, however, the

Court has initially kept the proceeding of the suit on

04.04.2013 and has also recorded that since the plaintiff

as well as different No.7 is required to be heard in the

application, the matter is now kept on 04.04.2023, this

order itself speaks that any prudent person more

particularly, Judicial Officer when the such application

has very extreme agency to decide the issue involved in

that application then it is strange that the Court has

adjourned the matter for three months i.e. almost after

90 days. Thereafter, it seems that since there is urgency,

learned advocate for the present petitioner might have

insisted for early hearing of the matter, which shows

C/SCA/1576/2023 ORDER DATED: 18/04/2023

that it has not gone well with the learned Presiding

Officer and therefore, he has proceeded with exhibit 199

application after passing earlier order by adjourning the

matter on 04.04.2023 and has passed the order by

rejecting exhibit 199 application on the very same day

i.e. 06.01.2023 without giving any cogent or convincing

reasons for doing so. He has not dealt with any

averment made in the application which is filed at

exhibit 199 application and he has proceeded that since

the plaintiff as well as different No.7 are required to be

heard how the defendant No.1 can claim any relief

against different No.7, and it is not disclosed by the

defendant No.1 and therefore, the application is required

to be rejected and that is with an cost of Rs.1 lakh and

this shows that the learned Presiding Officer has acted

in very improper manner and has decided the matter

without following the settled principles of law by giving

appropriate opportunity to the parties and has also came

to the conclusion with biased mind. This order cannot be

considered as judicious order. Moreover, it is also painful

C/SCA/1576/2023 ORDER DATED: 18/04/2023

that the Court has imposed cost of Rs.1 lakh merely

because the petitioner has insisted for early hearing of

the matter and this approach of the Presiding Officer

cannot be approved and the judicial officer is directed to

have more patience and more restraint while dealing

with the litigation of the parties.

9.2 In view of the above discussion and considering the

fact that that there is apparent error of law as well as

procedure of law, which cause fragrant violation of

fundamental principles of law and justice and also

considering the fact that the Court has not considered

the application below exhibit 199 with appropriate

reasons and also without hearing the other contesting

parties, by exercising my correctional jurisdiction, it is

appropriate to quash and set the side the impugned

order dated 06.01.2023 passed below Exh.199 application

in Regular Civil Suit No.55 of 2014 by the Trial Court -

learned Addl. Civil Judge, Bhayavadar with a further

direction to the learned Trial Court to decide application

C/SCA/1576/2023 ORDER DATED: 18/04/2023

below exhibit 199 afresh after giving proper opportunities

to the parties as expeditiously as possible, preferably

within a period of 4 weeks from the date of receipt of

copy of the order, in accordance with law.

10 In view of the above, the present petition is allowed

to the aforesaid extent.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA