Nirmil Jitendrabhai Shah vs Karan Devendra Rabari
2023 Latest Caselaw 2349 Guj

         C/SCA/23985/2022                                       ORDER DATED: 17/03/2023




                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 23985 of 2022

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                              NIRMIL JITENDRABHAI SHAH
                                         Versus
                              KARAN DEVENDRA RABARI
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MR D C SEJPAL(1322) for the Respondent(s) No. 2
MR KISHAN R CHAKWAWALA(9846) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                      Date : 17/03/2023
                                       ORAL ORDER

1. Heard learned advocate Ms. Jayini D. Thakore

appearing for learned advocate Mr. Dipen Desai for the

petitioner, learned advocate Mr. Kishan R. Chakwawala

for the respondent No.1 and learned advocate Mr. D.C.

Sejpal for the newly added respondent No.2.

2. The present petition is filed by the petitioner by

being aggrieved and dissatisfied with the impugned

judgment and order dated 23.08.2022 passed by learned nd 2 Additional Senior Civil Judge, Sanand below Exh.22

in Special Civil Suit No.31 of 2022, whereby the

application for impleading Niyati Nirmil Shah as

defendant No.2, is filed, which is rejected by learned

C/SCA/23985/2022 ORDER DATED: 17/03/2023

trial Court.

3.1 Brief facts of the case are as such that the

petitioner is in search of appropriate property in the city.

The petitioner came across a scheme namely Glade-One

at Sanand, Ahmedabad, which was being developed by

one of the most prominent developers of Ahmedabad. It

is the case of the petitioner, after visiting the site in

person, found the same to suit his requirements and

accordingly, the petitioner on 03.08.2018 by virtue of a

Registered Sale Deed bearing No.9336 purchased an

immovable property bearing unit No.W67 admeasuring

200.29 sq. meters constructed upon a plot admeasuring

1215 sq. meters forming part of land bearing survey No.1065/3P, 1065/7 and 1065/2 in Village Modasar,

Taluka Sanand, Registration District Ahmedabad for a

sale consideration of Rs.1,02,72,400/. The petitioner has

also submitted that a share certificate bearing No.448

also came to be issued to the petitioner by the society.

It is the case of the petitioner that the wife of the

petitioner namely Niyati Nirmil Shah whose maiden

name was Neha Shah, whom the petitioner had married

in 1996 and who had mothered two children namely

C/SCA/23985/2022 ORDER DATED: 17/03/2023

Malaika born in 1999 and Sahir born in 2002 with the

petitioner, was suffering from acute psychological

disorder, more particularly, known as Dis-social

Personality Disorder which disabled her from acting

rationally since 2004. On account of the aforementioned

disorder, she took actions and decisions which were

completely and utterly unacceptable and did not suit any

social standard or norms.

3.2 It is the case of the petitioner that the petitioner

has received a call from the administrative team of

Glade One who inquired why the name of the opponent-

accused-original accused person was being reflected in the

revenue record of the said property more particularly in

Village form No.7 and 12. The petitioner firstly thought it must be an error but, upon enquiry he found that

name is mutated in village form where the petitioner

has never made any application for mutating the revenue

record for his own sale and had never entered into any

transaction of sale for the said Property in favor of any

entity or individual whatsoever.

3.3 Thereafter, the petitioner has also found that the

notice issued under Section 135D of the Bombay Land

C/SCA/23985/2022 ORDER DATED: 17/03/2023

Revenue Code is served to some fictitious person named

Nilim Shah residing at Chanakyapura which is not the

address of the petitioner, and therefore, without service

of notice under Section 135D of the Bombay Land

Revenue Code, name was changed in favour of the

accused in the revenue record. This is the substance of

the case of the petitioner, and therefore, the petitioner

has preferred Special Civil Suit No.31 of 2022 before the

learned Civil Court, Sanand, inter alia, seeking a

declaration that the petitioner is the absolute owner and

occupier of the immovable property bearing unit No.W67

admeasuring 200.69 Sq. Meters constructed upon plot

admeasuring 1215 Sq. Meters forming part of land

bearing survey No.1065/3P, 1065/7 and 1065/2 in village Modasar, Taluka: Sanand, Registration District:

Ahmdabad.

3.4 The petitioner - plaintiff has also prayed for a

declaration that the power of attorney dated 13.11.2018

does not confer right, title or interest in connection with

the suit property and a declaration that the power of

attorney and all acts performed on the basis of the

power of attorney, are fraudulent, without authority of

C/SCA/23985/2022 ORDER DATED: 17/03/2023

law, and it is illegal and void. The petitioner - plaintiff

has prayed to set asaid the sale deed dated 13.12.2018,

which is executed in connection with the suit property

and for a further declaration that the said sale deed

execution in favour of the defendant is fraudulent, illegal

and non est in the eyes of law.

3.5 In addition to preferring the suit, the petitioner also

filed an application seeking injunction and appointment

of court commissioner, and the learned Trial Court by

virtue of its order dated 20.04.2022 was pleased to not

grant any ex parte injunction to the petitioner.

3.6 Thereafter, some further developments have taken place and certain documents are also placed on the

record, pursuant to the subject matter of the property, it

is say of the petitioner that the learned Trial Court has

passed the order by directing both the parties to

maintain status quo for the property in question by

order dated 27.04.2022. In the said order, the learned

trial Court has observed that the petitioner has not

joined his wife - Niyati Nirmil Shah as defendant No.2

who is necessary party to the suit and on that ground,

C/SCA/23985/2022 ORDER DATED: 17/03/2023

the trial Court did not grant mandatory injunction but

directed the parties to maintain status quo.

3.7 The said order dated 27.04.2022 is challenged before

this Court by way of Appeal from Order No.107 of 2022,

which is pending. It is case of the petitioner that the

petitioner vide application below Exh.22 has made

application to join wife of the petitioner as defendant

No.2 and learned trial Court has rejected the said

application at Exh.22 by order dated 23.03.2022 and

therefore, the present petition is preferred.

4.1 Learned advocate Ms. Jayini D. Thakore appearing

for learned advocate Mr. Dipen Desai for the petitioner has submitted that considering the application, which is

filed at Exh.22 and considering the provisions of Order I

Rule 10 of the Code of Civil Procedure, 1908 and also

considering the settled position of law, the plaintiff is

dominus litus, and the impugned order passed by the

learned trial Court is ex facie bad in the eyes of law.

4.2 She has drawn my attention towards the earlier

order passed below Exh.12, whereby while dealing with

C/SCA/23985/2022 ORDER DATED: 17/03/2023

Exh.12 application, the Court has directed to maintain

status quo and has observed that Niyati Nirmil Shah,

who is wife of the petitioner and wife of the attorney

holder, is not joined though the wife seems to be

necessary party to this suit, and therefore, she has

submitted that the same Court cannot now find that

Niyati Nirmil Shah is sought to be impleaded as a party

defendant in the suit.

4.3 She has submitted that considering the averments

made in the application and considering the earlier

finding of the learned trial Court, the requirement of

Order I Rule 10 is satisfied, and therefore, it is the duty

of the Court to grant permission to implead Niyati Nirmil Shah - defendant No.2 as party.

4.4 She has relied upon the judgment of the Hon'ble

Apex Court in the case of Robin Ramjibhai Patel Versus

Anandibai Rama reported in 2018 (15) SCC 614, whereby in paras 8 & 10, it is found that the Court has accepted

the status of dominus litus and in para 10, it is

observed that "When the plaintiff wants to implead

certain persons as a defendants on the ground that they

C/SCA/23985/2022 ORDER DATED: 17/03/2023

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."

4.5 She has further relied upon the judgment of the

Hon'ble Apex Court in the case of Kasturi Versus Lyyamperumal reported in 2005 (6) SCC 733, and has submitted that in view of the said judgment, wherein

the provisions of Order I Rule 10 of the Code of Civil

Procedure, 1908 is considered by the Hon'ble Apex Court

and after considering the same, the Court has found that

the persons, sough to be added in the suit, were necessary or proper party to be added as party

defendants in the said suit instituted by the plaintiff -

appellant, and therefore, she has prayed that the present

petition is required to be allowed by quashing and

setting aside the impugned judgment and order.

5.1 Per contra, learned advocate Mr. Kishan R.

Chakwawala for the respondent No.1 has strongly

objected and has submitted that the application filed by

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the present petitioner, is totally misconceived as in the

application, nowhere it is stated that how the proposed

defendant is necessary and proper party.

5.2 He has also argued that such conduct of the

plaintiff creates impression before the learned trial Court

that plaintiff has suppressed the material facts from the

Court, and thereafter, when the Court has found that

the plaintiff has not impleaded as necessary party below

Exh.12 order, the present application is filed and that is

also without making necessary averment in the

application.

5.3 He has further submitted that plaintiff and proposed defendant No.2 is husband and wife, and therefore, there

is collusion between them, and therefore also, the

plaintiff has not come with clean hands before the Court.

5.3 He has further submitted that the application

should be considered as barred by latches and

acquiescence. He has drawn my attention towards the

pleadings made in the plaint whereby as per his

submission, the plaintiff averred in the plaint by making

C/SCA/23985/2022 ORDER DATED: 17/03/2023

averment against the proposed defendant No.2 on the

line of ifs and buts and no definite averment or

allegation made against proposed defendant No.2 nor any

prayer is sought against the defendant, and therefore, he

has submitted that the learned trial Court has rightly

rejected the application filed by the present petitioner,

otherwise, it would amount to miscarriage of justice.

6. Learned advocate Mr. D.C. Sejpal appearing for the

proposed respondent No.2. - Niyati Nirmil Shah has

submitted that he has filed affidavit-in-reply by putting

his case to the extent that without admitting any of the

statements and averments made either by the petitioner

or by any of the parties, he has no objection, if the Court wants to add Niyati Nirmil Shah - defendant No.2

in the proceedings.

7. It is relevant to note that this Court has issued

notice to Niyati Nirmil Shah as proposed respondent

No.2 by order dated 03.03.2023.

8.1 Considering the documentary evidence as well as

pleadings of the parties available on the record, it clearly

C/SCA/23985/2022 ORDER DATED: 17/03/2023

transpires that the proposed respondent No.2 is wife of

the present petitioner and also alleged power of attorney

holder. Moreover, while deciding the application at

Exh.12 by the learned trial Court, the Court has found

in para 3 that "... And at present it is also an

undisputed fact that plaintiff has not joined his wife as

a party to the suit. By way of the present suit, the

plaintiff has challenged and denied the power of attorney

as well as the sale deed regarding the suit property.

However, plaintiff has not joined his wife who seems to

be necessary party to this suit..." This order dated is

passed by the learned trial Court on 27.04.2022. It

seems that application at Exh.22 is filed by the plaintiff

whereby the Court has considered the rival submissions and application of the plaintiff and has given the

findings which are more particularly recorded in para 4

for consideration, which reads as under:-

"4. The plaintiff submits as under:

a. The Honourable Court be pleased to implead Niyati

Nirmil Shah as defendant no. 2 in the present

proceedings;

C/SCA/23985/2022 ORDER DATED: 17/03/2023

b. The Honourable Court be pleased to permit the

plaintiff to amend the cause title of the plaint and

application for injunction in order to reflect the details

of defendant no. 2 as under:

               (i)      Defendant no. 2

                     Niyati Nirmil Shah

                     Age: Adult

                     Occupation: Housewife

                     Residing at 27, Capri Building

                     9 Manav Mandir Road

                     Off Nepean Sea Road

                     Mumbai-400006

                     Maharashtra

c. Such other and further reliefs as may be deemed

fit and appropriate be granted in the interest of

justice;"

8.2. From the reasoning recorded in para 4, it clearly

transpires that though the Court has earlier expressed

that the proposed defendant No.2 - Niyati Nirmil Shah

is necessary party, somehow, while deciding this

application, the Court has taken totally different view by

holding that she is not necessary party nor proper party

and the application is rejected by awarding the cost of

C/SCA/23985/2022 ORDER DATED: 17/03/2023

Rs.1,000/- and this, in my view, totally perverse finding

as the earlier observation made in order passed below

Exh.12 is available on the record and not only that, it

also reflect from the pleadings of the parties that such

observation is made by the Court while deciding that

application and it is observed that the proposed

defendant No.2 is necessary party, and therefore, it is

strange that such contradictory finding is given by the

learned trial Court which is based on only assumption

and not in accordance with law.

8.3 Moreover, considering the Order I Rule 10 of the

Code of Civil Procedure, 1980, which reads as under:

"Order I Rule 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 through 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.

C/SCA/23985/2022 ORDER DATED: 17/03/2023

(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

name of any person who ought to have been joined,

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 1 [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.

C/SCA/23985/2022 ORDER DATED: 17/03/2023

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."

And also considering the judgments cited at the

Bar, it is well settled provisions of law that the plaintiff

is dominus litus and plaintiff can add any party at any

stage of the suit proceedings with the permission of the

Court, in the present case, when the Court itself found

while deciding one of the applications that the proposed

defendant No.2 is a necessary party, I found no reason to reject such application at Exh.22, which is squarely

covered by the provision of Order I Rule 10 read with

Section 151 of the Civil Procedure Code, and therefore,

the present petition deserves to be allowed by exercising

my powers conferred under Article 227 of the

Constitution of India as the findings of the learned trial

Court is contrary to the materials available on the

record and also by misappreciating the provisions of law.

C/SCA/23985/2022 ORDER DATED: 17/03/2023

9. The present petition is allowed accordingly.

10. The impugned judgment and order dated 23.08.2022 nd passed by learned 2 Additional Senior Civil Judge,

Sanand below Exh.22 in Special Civil Suit No.31 of 2022

is quashed and set aside.

11 The plaintiff shall implead the defendant No.2 -

respondent No.2 herein as a defendant No.2 in the suit

proceedings by amending the plaint.

12. With the above observation, the present petition is

disposed of.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA