Shirishkumar Rameshchandra ... vs Kishoreben Jagatkishor Purohit
2023 Latest Caselaw 2523 Guj

      C/SCA/1219/2023                                          ORDER DATED: 27/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 1219 of 2023

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                  SHIRISHKUMAR RAMESHCHANDRA PARIKH
                                 Versus
                    KISHOREBEN JAGATKISHOR PUROHIT
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Appearance:
MR HASIT DAVE(1321) for the Petitioner(s) No. 1
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 27/03/2023

                                   ORAL ORDER

1. The present petition is filed by the petitioner

challenging the order impugned passed below Exh.36 dated

04.11.2022 by the Principal Senior Civil Judge, Vadodara in

Special Civil Suit No.175 of 2018, by which, the trial Court

has refused to add the petitioner as party plaintiff to the

said suit. The said suit is filed by the plaintiff - respondent

No.2 herein and the defendant - respondent No.1 herein for

specific performance.

2. The facts of the present case are as under :

2.1 The plaintiff - an administrator of Shri Acharya

Mahaprabhuji Ni Bethak Temple viz., Shri Vrajeshkumar

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Vrajbhushanlalji Maharaj Shri, Vadodara has filed the suit

against the defendant - Smt. Kishoriben Jagatkishor Purohit

for specific performance of an agreement to sell, which is

executed for an immovable property for the consideration of

Rs.6 lakhs. The said agreement to sell is notarised one and

not the registered document.

2.2 During the pendency of the suit, the deed of

assignment is executed by the original plaintiff in favour of

the present petitioner. Therefore, the present petitioner has

filed an application below Exh.36 for impleading the party

plaintiff in the said suit.

2.3 After considering the rival submissions made by

the respective parties, the trial Court has rejected the

application for impleading the present petitioner as party

plaintiff in the suit vide order dated 04.11.2022.

2.4 At the time of filing the present petition, the

original plaintiff was alive and therefore naturally, at the

time of filing of an application below Exh.36 before the trial

Court, the original plaintiff was alive.

2.5 It is noted that the original plaintiff has expired

recently, as submitted by both the learned advocates for the

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parties.

2.6 It is this order impugned, the petitioner has

challenged before this Court in this petition.

3.1 Learned advocate Mr. Hasit Dave for the petitioner

has strongly relied upon the deed of assignment and has

submitted that by virtue of the assignment deed, interest is

created in favour of the present petitioner. He has further

submitted that in view of the provisions of Order I Rule 1

read with Order XXII Rule 10 of the Code of Civil

Procedure, the trial Court ought to have allowed the

application filed by the petitioner. He has submitted that the

trial Court has misread and misinterpreted the documents on

record produced by the petitioner. He has submitted that the

trial Court has not appreciated the provisions of law and

therefore, this petition is required to be allowed by this

Court by exercising the powers under Article 227 of the

Constitution of India.

3.2 He has further submitted that the application

under Order 7 Rule 11 of the Code filed by the defendant is

rejected by the trial Court. He has also submitted that the

application Exh.5 filed by the plaintiff is allowed by the trial

Court. He has also submitted that if the petitioner is joined

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as plaintiff in the suit, no prejudice would be caused to the

rights of the defendant, as the defendant will get equal

opportunity to deal with the averments and submissions

made by the petitioner. He has submitted that the plaintiff

has filed a purshis and has given no objection before the

trial Court for joining the petitioner as party plaintiff. He

has submitted that this petition may be allowed.

4.1 Per contra, learned advocate Mr.Amit Joshi for respondent No.1 - original defendant has vehemently opposed

this petition. He has submitted respondent No.1 has also

filed affidavit by contending the various grounds. He has

submitted that the application below Exh.36 was filed by the

petitioner when the plaintiff was alive. He has submitted

that the plaintiff himself has not filed such application for

joining the petitioner as plaintiff in the suit. He has

submitted that the issues are already framed by the trial

Court and now, the matter is ripe for leading the evidence.

He has submitted that at this stage, the petitioner has filed

the application before the trial Court for joining as plaintiff

in the said suit.

4.2 He has drawn the attention of this Court to the

vital document i.e. agreement to sell, which is of the year

2007. He has submitted that the said agreement to sell is an

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unregistered document. He has submitted that the suit is

filed in the year 2018. Therefore, there is an aspect of delay

in the suit proceedings.

4.3 He has further submitted that no case is made

out for exercising the powers by this Court under Article 227

of the Constitution of India as the petitioner is a third party

to the suit proceedings and therefore, has no right to file

such litigation. He has further submitted that moreover, the

petitioner has no right to file an application below Exh.36 for

joining the petitioner as plaintiff in the suit before the trial

Court when the plaintiff was there. He has submitted that

the trial Court has rightly rejected the application of the

petitioner. He has submitted that this petition may be

dismissed.

5.1 I have heard learned advocates for the respective

parties. I have also gone through the material available on

record. While perusing the application filed by the petitioner

before the trial Court below Exh.36 in the suit proceedings,

it transpires that the petitioner has not averred any

provisions of law that under which provisions, he has filed

such application. Even looking to the prayer which is made

in that application, which gives impression that the

application is filed to implead the petitioner as party plaintiff

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in the suit in place of the plaintiff, but, the provisions of

law is not reflected from the said application and therefore,

it can be presumed that the said application is filed under

Order I Rule 10 of the Code of the Civil Procedure, 1908.

Said Order I Rule 10 of the Code 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.

(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.

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(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 2 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.

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."

Therefore, if we consider the provisions of Order I

Rule 10 of the Code, on his own or by way of any

application from the party to the suit can add or delete the

name of the plaintiff or defendant. It is not the case of the

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petitioner here that the petitioner is a stranger to the suit

and seeking his impleadment on his own though the said

application is rather consented by the purshis of the original

plaintiff subsequently, but fact remains that neither the

plaintiff nor the defendant has filed such application nor the

trial Court on its own finds necessary to add or delete any

of the party in the proceedings.

5.2 Now, if we examine Order I Rule 1 of the Code,

which is heavily relied upon by the learned advocate for the

petitioner, it speaks as to who may be joined as plaintiff in

the suit proceedings. The said provision reads as under :

"Order I Rule 1 : Who may be joined as plaintiffs.--All persons may be joined in one suit as plaintiffs where--

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise."

5.3 In view of above, this Court is of the view that

this provision is not applicable to the facts of the present

case, as during the pendency of the suit, which is already

instituted by the plaintiff, by virtue of the assignment deed,

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the petitioner is seeking impleadment as party plaintiff

without referring any provisions of law in his application.

Therefore, reliance which is placed on the provisions of Order

I Rule 1 of the Code is not found satisfied considering the

facts of the present case.

5.4 The Code of Civil Procedure, 1908 is a self-

contained Code, which is required to be kept in mind while

conducting the suit. At the same time, the provisions of law

like Section 54 of the Transfer of Property Act is also

required to be kept in mind. The provisions of law should be

adhered strictly in such type of civil proceedings.

5.5 Learned advocate Mr.Hasit Dave for the petitioenr

has placed reliance on the Order XXII Rule 10 of the Code,

which is as under :

"Order XXII Rule 10 : Procedure in case of assignment before final order in suit.--

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling

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the person who procured such attachment to the benefit of sub-rule (1).

[10A. Duty of pleader to communicate to Court death of a party.--Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.] "

5.6 From bare perusal of such provisions, though there

is a provision to implead the party, which is in different

context and in different set of circumstances, but not

applicable in the facts of the present case. Moreover, in view

of Section 54 of the Transfer of Property Act, even the deed

of assignment which is executed in favour of the present

petitioner by the original plaintiff and considering the

decision of Apex Court in the case of Meghmala and Ors v.

G. Narasimha Reddy and Ors. reported in (2010) 8 SCC 383, whether such right can be created by the plaintiff in favour

of the present petitioner by way of deed of assignment, which

is a notarised document or not, is also debatable one.

5.7 Considering the impugned order, by which the trial

Court has given cogent and convincing reasons while rejecting

the application of the present petitioner, this Court finds that

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there is no illegality and perversity committed by the trial

Court. There is no justifiable reasons made out by the

petitioner.

5.8 At this stage, it is necessary to refer here the

observations made by the Hon'ble Apex Court in the case of

M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly paras 18 and 19 thereof, which are as under :

"18. 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 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 tribunal1. 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

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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. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2has 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 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

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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."

19. 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 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

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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."

5.9 The scope of exercising the powers under Article

227 of the Constitution of India is very limited and further,

this Court finds that there is no ground made out by the

present petitioner to exercise the powers by this Court. This

petition therefore deserves to be dismissed.

6. For the reasons recorded above, this petition is

dismissed. Notice is discharged.

(SANDEEP N. BHATT,J) M.H. DAVE