Jignesh Ashwinbhai Shah For ... vs Meenaxiben Natvarlal Jayswal
2023 Latest Caselaw 3202 Guj

     C/SCA/3985/2022                              ORDER DATED: 24/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3985 of 2022

==========================================================
 JIGNESH ASHWINBHAI SHAH FOR HIMSELF AND AS POA OF ABDUL
                    RAHIM SATTAR FODA
                          Versus
             MEENAXIBEN NATVARLAL JAYSWAL
==========================================================
Appearance:
MR ARPIT A KAPADIA(3974) for the Petitioner(s) No. 1
MR AMRISH K PANDYA(3219) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 6
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 24/04/2023

                             ORAL ORDER

1. The present petition is filed being aggrieved

and dissatisfied with the impugned order passed by the learned Principal Civil Judge, Waghodia District

Vadodara below Exh.28 application in Regular Civil Suit

No.76 of 2017 on 29.11.2019, by which the application

filed by the present petitioner for impleading him as

party is rejected.

2. The brief facts giving rise to this petition are

such that the respondent no.1 herein has instituted

Regular Civil Suit No.76 of 2017 against respondent

C/SCA/3985/2022 ORDER DATED: 24/04/2023

nos.2 to 6 herein in the Court of Principal Civil Judge,

Waghodiya for declaration and permanent injunction that

she has become the owner and occupier of the suit land

on the basis of Will and further the defendant nos.1 and

2 have accepted the amount of Rs.5 lakhs by way of

compromise and given peaceful and vacant possession of

the suit land. It is averred in the petition that the

present petitioner's predecessor purchased the land in

question and on the demise of the legal owner and

predecessor, a dispute also arose between the respondents

herein for mutation of entry in the revenue record,

wherein the predecessor of the petitioner was also a

party, however, the same was withdrawn; that the

petitioner herein filed Special Civil Suit No.7 of 2018 before the Civil Judge (Senior Division), Savli for specific

performance of contract; that the present petitioner has

also filed Arbitration Suit No.40 of 2018 before the

Board of Nominee with regard to the subject land.

3. It is averred that when the petitioner came to

know about the institution of the captioned suit and

issuance of summons therein on 19.3.2018, the petitioner

preferred application Exh.18 for joining party as

C/SCA/3985/2022 ORDER DATED: 24/04/2023

defendant in the captioned suit on 26.4.2018, as the

present petitioner is a necessary and/or proper party for

the adjudication of the main controversy. However, the

same was dismissed on 26.10.2018 on the ground of

absence of the learned advocate for the petitioner, which

the petitioner came to know on 26.12.2018 and therefore,

he filed application Exh.28 with a prayer to recall the

order passed below Exh.18, however, the said application

was rejected vide the impugned order and therefore this

petition is filed.

4. Heard learned advocate Mr.Arpit Kapadia for

the petitioner and learned advocate Mr.Amrish Pandya

for respondent no.1. Though served, rest of the respondents have not filed their appearance.

5. Learned advocate Mr.Kapadia for the petitioner

has submitted that the application which is filed by him

for impleading him as a party in the suit proceedings

i.e. Regular Civil Suit No.76 of 2010 was dismissed by

order dated 26.10.2018, as on that very day neither the

applicant nor his advocate has remained present and the

matter was dismissed for want of prosecution and

C/SCA/3985/2022 ORDER DATED: 24/04/2023

therefore the application for recall of the order at Exh.28

was given which was also dismissed vide the impugned

order dated 29.11.2019. He has further submitted that

the petitioner has strong case on merits and he is

required to be impleaded as party as the several

litigations between the parties are pending and the

present petitioner is one of the litigant in the suit which

is filed before the learned Nominee Court being Lavad

Suit No.40 of 2018 and he has also filed Special Civil

Suit No.7 of 2018 before the learned Civil Judge, (Senior

Division), Savli. Therefore, he has submitted that if the

present petitioner is not made party in the suit

proceedings, then the multiplicity of proceedings may

arise and there is all possibility to have the different decrees by different Courts and therefore, the petitioner

is necessary and proper party.

6. However, he has submitted that the application

for recall of the order dated 26.10.2018 passed below

Exh.18 filed for impleading him as party in the Regular

Civil Suit was filed on 28.6.2019 and presented on

29.7.2019. Learned trial Court has passed the order on

29.7.2019 in the application to issue notice to the parties

C/SCA/3985/2022 ORDER DATED: 24/04/2023

and on 29.11.2019, the application is dismissed for want

of prosecution. He has submitted that the learned trial

Court ought to have considered the fact that the present

petitioner is necessary party in the proceedings and

ought not to have dismissed the application for want of

prosecution. He has submitted that learned trial Court

could have granted one more opportunity by drawing

attention of this Court towards the provisions of Order 9

Rule 3 and 4 of Code of Civil Procedure, 1908 (`CPC' for

short) read with Section 151 of CPC. He has submitted

that while issuing notice, this Court has protected the

petitioner by way of granting interim relief and therefore

he has prayed that the petition may be allowed, even by

imposing cost.

7. Per contra, learned advocate Mr.Pandya

appearing for the respondent has submitted that there is

gross negligence on the part of the present petitioner as

well as the learned advocate for the petitioner that

though he himself has filed application on 28.6.2019

which was produced on 29.7.2019 and though the Court

has issued notice to hear the application to the parties

in the suit, the petitioner nor his advocate remained

C/SCA/3985/2022 ORDER DATED: 24/04/2023

present nor any application for adjournment was given

and therefore, the Court had no option but to dismiss

the application as suit is essentially filed for declaration

and permanent injunction which is of year 2017 and

Court cannot wait for said third party for indefinite

period. He submitted that the Court has rightly

dismissed the application filed under the provisions of

Order 1 Rule 10 of CPC by the present petitioner at

Exh.28 and in view of the provisions of Order 9 Rules 2

and 3, read with Section 151 of CPC, the Court has

rightly exercised its discretion by rejecting the

application. He has also submitted that the petitioner

could have filed the proper application before the same

court for restoration of the application, however, he has filed this petition which is misconceived and this Court

may not interfere with the impugned order by exercising

discretionary powers under Article 227 of the

Constitution of India.

8. I have considered the rival submissions of the

parties, the record available with the petition, prayer

made in the present petition, application filed at Exh.28

before the trial Court and the order passed below it on

C/SCA/3985/2022 ORDER DATED: 24/04/2023

29.11.2019.

9. It transpires from the record that the

application for joining party was filed at Exh.18 on

26.4.2018, thereafter the same was scheduled to be heard

on 26.10.2018, however, as the petitioner nor his

advocate were present, the same was dismissed on the

ground of absence of the learned advocate for the

petitioner. Against the said order of dismissal, an

application Exh.28 was filed for recall of the said order

dated 26.10.2018, on 28.6.2019, which was presented on

29.7.2019 and the notice was issued which was made

returnable on 30.8.2019. In between, there must be some

adjournments which is not coming on the record of this

petition. Thereafter, on 29.11.2019, the matter was there on the board but neither the present petitioner nor his

advocate was present and thereafter the Court has

rightly dismissed the application filed by the present

petitioner.

10. After the said order of dismissal, the present

petition is filed challenging the said order by the

petitioner on 9.2.2022 i.e. after about 2 ½ years from

the date of dismissal of the application. Even the

C/SCA/3985/2022 ORDER DATED: 24/04/2023

restoration application is required to be filed within 30

days of the date of the order i.e. on or before

29.12.2019. In the memo of the petition, the petitioner

has tried to justify the delay in filing the present

petition that from March, 2020, there has been nation

wide lockdown due to Covid-19 pandemic, thereafter, in

April, 2021 the petitioner has himself tested positive for

Covid-19 and therefore he has not attended the office for

some period; that there was raid of income tax in the

month of October, 2020 and as the petitioner was

occupied in various proceedings relating to income tax,

he could not attend the proceedings in November, 2020

in matter in question.

11. All this explanation is prima facie found as an afterthought and not acceptable in the facts and

circumstances of the present case and petition is also

required to be rejected on the ground of delay and

laches. Moreover, there is no explanation about the fact

that on the date when the application below Exh.18 was

fixed for hearing, i.e. on 26.10.2018 and the application

Exh.28 i.e. on 29.11.2019, why the petitioner or his

advocate has not remained present. Otherwise also, the

C/SCA/3985/2022 ORDER DATED: 24/04/2023

learned trial Court has, after keeping in mind relevant

aspects, passed the order which is impugned in the

present petition and there is no error or perversity in

the impugned order, which needs to be interfered with

by this Court under Article 227 of the Constitution of

India.

12. 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, where it was held that High Courts while exercising

powers under Article 227 does not act as appellate

authority and cannot reappreciate evidence and the

jurisdiction exercised under Article 227 is in nature of

correctional jurisdiction to set aside grave dereliction of duty or flagrant abuse of process of law and High Court

cannot substitute its own view on merits.

13. In view of the above discussion, this petition is

dismissed. Notice is discharged. Interim relief granted

earlier stands vacated. No order as to cost.

(SANDEEP N. BHATT,J) SRILATHA