Lhs Of Decd. Thakor Ibrahimkhanji ... vs Mumtazbibi Shermohammadkhanji ...
2023 Latest Caselaw 3165 Guj

       C/SCA/6977/2023                                  ORDER DATED: 21/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6977 of 2023
==========================================================
     LHS OF DECD. THAKOR IBRAHIMKHANJI AHMEDKHANJI & 11 other(s)
                               Versus
        MUMTAZBIBI SHERMOHAMMADKHANJI THAKOR & 16 other(s)
==========================================================
Appearance:
MR DHRUV K DAVE(6928) for the Petitioner(s) No.
1,10,10.1,11,1.1,12,1.2,1.3,2,3,4,5,6,7,8,9
for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,2,2.1,2.2,2.3,3,4,5,6,7,8,9
==========================================================

     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 21/04/2023

                               ORAL ORDER

1. The present petition is filed by challenging the

judgment and order below Exh.173 on 12.10.2022 passed

in New Regular Civil suit No.3 of 2018, whereby the

learned trial Court has dismissed the application filed

under Order 1 Rule 10 by the petitioner for want of

prosecution.

2. In the first session, when this Court heard

learned advocate Mr.Dhruv K Dave for the petitioner and

pointed out that considering the order and considering

the fact that the application filed under Order 1 Rule 10

to implead the present petitioner as party is dismissed

C/SCA/6977/2023 ORDER DATED: 21/04/2023

for default for want of prosecution, the Court is not

prima facie convinced with the averments made in the

petition, learned advocate for the petitioner has prayed

time to take further instructions and requested to keep

back the matter.

3. When the matter is called out in the second

half, learned advocate for the petitioner is not present.

Therefore, the matter is considered and decided on

merits.

4. From the documents produced on record, it

transpires that one civil suit was filed by one

Shermohammed Khanji Anawar Thakore where Amanulla

Khanji Nasrulla Khan etc. were defendants, wherein the present petitioner has filed application to implead himself

as party under the provisions of Order 1 Rule 10 of

CPC on the basis of some consent decree passed in

Regular Civil Suit No.1 of 1959 and that consent decree

was challenged by way of Special Civil Suit No.34 of

1961 before the Civil Court, Vadodara, in which the civil

Court has set aside the order passed in RCS No.1 of

1959 and thereafter land of Survey no.55 paiki 1/242

was entered into the name of the defendants in the

C/SCA/6977/2023 ORDER DATED: 21/04/2023

present suit i.e. RCS No.3 of 2018 (old RCS No.27 of

2008).

5. It also transpires from the record that the

petitioner was not aware about the earlier proceedings

dated 23.11.1958 whereby Ahmedkhanji Anwarkhanji

was shown as proprietor of the land in question by entry

executed on 23.11.1958 and the said order was lying

with the uncle of the present petitioner Usmankhan who

expired on 24.1.2018 and when going through the

household articles, the present petitioner found the order

dated 23.11.1958 by which the entry was made in favour

of the propriety concern and therefore the application is

filed in the suit to implead as party on 1.1.2020 and the

impugned order by which the learned Court has dismissed the application for want of prosecution is

passed on 12.10.2022. Therefore, though the necessary

proceedings or rojkam is not produced along with this

petition, it can be easily inferred that the present

petitioner has not taken any steps to pursue the

application under Order 1 Rule 10 of the CPC for a long

period of about two years and therefore the Court has

rightly dismissed the application filed by the present

C/SCA/6977/2023 ORDER DATED: 21/04/2023

petitioner for want of prosecution. Even on the day when

the application was dismissed by the learned Court, it

transpires that neither the petitioner nor his advocate

were present.

6. Otherwise also, considering the findings in the

case of Garment Craft V/s Prakash Chand Goel reported

in (2022) 4 SCC 181, this Court has limited powers to

interfere with the discretionary order passed by the court

below.

7. In view of the above, this petition is dismissed.

Considering the fact that the present petitioner has

wasted precious time of the Court, though the Court is

inclined to impose the cost on the petitioner, however, the Court is restraining itself from doing so.

(SANDEEP N. BHATT,J) SRILATHA