Gujarat High Court
Chunilal Nanjibhai vs Lhrs Of Decd. Bapusinh Ramsangbhai ... on 21 April, 2025
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Reserved On : 04/04/2025
Pronounced On : 21/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2603 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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CHUNILAL NANJIBHAI
Versus
LHRS OF DECD. BAPUSINH RAMSANGBHAI JADAV & ORS.
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Appearance:
VMP LEGAL(7210) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 7.1,7.2
DELETED for the Respondent(s) No. 3,5
MR RATHIN P RAVAL(5013) for the Respondent(s) No.
7.1.1,7.1.2,7.1.3,7.1.4,7.2.1,7.2.2,7.2.3,7.2.4,7.2.5,7.3,7.4,8.1,8.2,8.3,8.4
MS ESHA S BHAVSAR(12116) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
NOTICE SERVED for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Rathin
Raval waives service of notice of rule on behalf of the
contesting respondents and learned advocate Ms. Esha S.
Bhavsar waives service of notice of rule on behalf
respondent Nos. 1.1 to 1.5.
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2. Though served, none appeared on behalf of other
respondents. Even otherwise, presence of other respondents
are not required for adjudication of writ application.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :
"A) Your Lordships may be pleased to issue a writ of certiorari or
any other appropriate writ to quash and set aside the order dated
02/12/2022 passed by the Principal Senior Civil Judge, Morbi below
Exh. 139 in Regular Civil Suit No.105 of 2017 at Annexure - "B" and
dismiss the application Exh. 139 at Annexure - "A" filed by Respondent
Nos.7.1.1 to 7.1.4, 7.2.1 to 7.2.5, 7.3 and 7.4 and Respondent No.8.1
to 8.4 before the Civil Court at Morbi;
(B) Pending the hearing and final disposal of the present petition,
Your Lordships may be pleased to stay the further proceedings of
Regular Civil Suit No.105 of 2017 pending before the Principal Senior
Civil Judge, Morbi;
(C) Ex-parte ad-interim relief in terms of prayer (B) above may
kindly be granted;
(D) Pass an order of costs against the Respondent Nos.7.1.1 to
7.1.4, 7.2.1 to 7.2.5, 7.3 and 7.4 and Respondent No.8.1 to 8.4.
(E) For such other and further reliefs as the Honourable Court may
deem fit in the facts and circumstances of the case."
4. The parties will be referred as far as possible as per
their original position in the suit.
5. Heard learned advocates appearing for the respective
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parties at length.
Short Fact of the case.
6.0 The petitioner herein original defendant No.6 of
Regular Civil Suit No. 105 of 2017 (old Special Civil Suit No.
57 of 2011) now pending before the Principal Senior Civil
Judge, Morbi filed by predecessor of respondent Nos.1.1 to
1.5 (hereinafter referred to plaintiffs) against the petitioner
as respondent Nos. 2 to 6, who happens to be defendant
Nos. 1 to 5.
6.1 The original plaintiff happens to be brother of
defendant nos. 2 to 4 and brother-in-law of defendant No.5.
It is the case of the plaintiff that defendant Nos. 2 to 5 have
unauthorisdely executed registered sale deed on 17.06.2010
in favour of defendant No.1 in relation to suit property who
in turn executed registered sale-deed dated 07.03.2011 in
favour of petitioner - defendant no.6 .
6.2 The original plaintiff came to know about the aforesaid
sale-deed challenged it by way of aforesaid suit, and sought
for other reliefs. The original plaintiff died during the
pendency of the suit, whose legal heirs are brought on
record.
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6.3 The predecessors of respondent No. 7.1 to 8.4 (herein
after referred to the applicants) happens to be real brother
of original plaintiffs namely Bapusinh Ramsangbhai Jadav,
who have filed impugned application below Exh. 139 to be
joined in the aforesaid suit.
6.4 The plaintiff has not objected the impugned application
but petitioner - defendant No.6 has objected it.
6.5 After hearing the parties, the trial Court vide its order
dated 02.12.2022 has allowed the application, thereby,
permitted respondent Nos. 7.1 to 8.4 herein to be joined as
co-plaintiffs, which is impugned in the present writ
application.
Submission of the petitioner-defendant No.6
7.0 Learned advocate Mr. Vimal Patel for the petitioner
would submit that the trial Court has erroneously and
without appreciating the objection of defendant No.6 has
wrongly allowed the impugned application, thereby,
committed gross error of law.
7.1 Learned advocate Mr. Patel would further submit that
the applicants have due knowledge about the pendency of
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the suit since long which can be confirmed from bare reading
of the order passed by the revenue authority wherein the
applicants have questioned the revenue entries mutated in
favour of the defendant No.1 & 6 due to execution of
registered sale deed dated 17.06.2010 and subsequent sale
deed in favour of petitioner and having lost before the
revenue authorities filed the impugned application, which
ought to have been rejected.
7.2 Learned advocate Mr. Patel would further submit that
applicant having not challenged the sale deeds in question
like original plaintiff within stipulated time from the date of
their knowledge, suit gets time barred for them, thereby,
they could not be allowed to join as co-plaintiffs in the suit.
7.3 Learned advocate Mr. Patel would further submit that
the trial Court has completely lost sight of the factum of
Section 21 of Limitation Act, while allowing the impugned
application. He would submit that when claim/challenge of
applicants is ex-facie time barred, their application requires
to be rejected.
7.4 Learned advocate Mr. Patel would further submit that
though main prayer made in the suit challenging the sale
deeds in question but consequential prayers would seek
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declaration of inheritance right of original plaintiff and
asking for his share from defendants and not others. Now, if
applicants are to be joined, who have not questioned the
sale deed within period of limitation so prescribed under the
Act, would not be entitled to claim and get such
consequential relief in their favour as it is time barred.
7.5 Learned advocate Mr. Patel would further submit that
assuming without admitting that main prayer of original
plaintiff would be accepted then also, to the extent of share
of original plaintiff, sale-deed would be disturbed and to that
extent only original plaintiff - his successors would be
entitled to get share in the suit property but other brothers
of plaintiff having not questioned the sale-deeds in question
would not be entitled to get their share as not questioned
sale-deeds in time.
7.6 To buttress his argument, learned advocate Mr. Patel
for the petitioner would refer and rely upon the following
decisions :-
(i) Ramprasad Dagaduram Vs. Vijaykumar Motilal
Hirakhanwala and others reported in AIR 1967 SC 278 (relied
upon Para- 4, 7, 15, 17 & 19)
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(ii) N.V. Srinivasa Murthy and others Vs. Mariyamma (dead)
by proposed Lrs. And others reported in (2005)5 SCC 548
(relied upon Para-8,9,12 &14)
(iii) Tulebahadur Mahavir Prasad since Dece. Through heirs
Vs. Dineshbhai Shivlal Patel reported in 2014(0) AIJEL-HC
231592 (relied upon Para-13 & 14)
(iv) Life Insurance Corporation of India Vs. Sanjeev Builders
Pvt. Ltd. and others reported in (2018) 11 SCC 722 (relied upon
Para-11).
(v) Manjulaben D/o Jagjivanbhai Lallubhai and Wd/o
Kanaiyala Morardas Vs. Kakshaben D/o Mansukhbhai
Jagjivanbha and W/o Mukesh Patel reported in 2019 (0)
AIJEL-HC 241455 (relied upon Para- 21 & 22)
7.7 Learned advocate Mr. Patel for the petitioner would
request this Court to allow the present writ application.
Submission respondents- applicants
8.0 Learned advocate Mr. Rathin Raval for respondents-
applicants has vehemently objected the present writ
application and requested this Court not to entertain the
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present writ application while exercising its power of under
Article 227 of the Constitution of India.
8.1 Learned advocate Mr. Raval would further submit that
predecessor of applicants happen to be real brothers of
original plaintiff, who has questioned the sale-deed
executed by the original defendant nos. 2 to 5 in favour of
defendant nos. 1 and 6 on the ground that defendant nos.2
to 5 are not absolute owner of the suit property and no right
to execute sale deed in question, then, applicants are one of
the co-owners of suit property and so they are necessary and
proper party, requires to be joined in the suit.
8.2 Learned advocate Mr. Raval would further submit that
as per Order 1 rule 10(2) of CPC, at any stage of the
proceedings, party can be added as plaintiff or a defendant,
thereby, question of limitation is not required to be taken
note of while adjudicating the impugned application. He
would further submit that the scope and ambit of
adjudication of impugned application would be depend upon
the applicants who desirous to be joined are necessary and
or proper party or not and not beyond it.
8.3 Learned advocate Mr. Raval would further submit that
it is undisputed fact that the predecessors of the applicants
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happens to be real brother of original plaintiff having
interest in suit property, although initially questioned
revenue entries mutated in favour of defendant Nos.1 and 6
are not only necessary but proper party to the suit, thereby,
the trial Court has correctly allowed the impugned
application.
8.4 Learned advocate Mr. Raval would further submit that
at relevant point of time, the defendant No.6 has objected
the suit by contending inter-alia that all necessary parties are
not joined in the suit and once applicants who have filed
impugned application which is not objected by plaintiffs,
later on, petitioner can not object impugned application. He
would submit that plaintiff is dominus litis and having not
objected the joining of applicants as co-plaintiffs in the suit,
defendant No.6 has no right to object it.
8.5 Learned advocate Mr. Raval would further submit that
during the pendency of the present petition, the plaintiff has
submitted his oral evidence who has been cross examined by
the defendants but surprisingly defendants have requested
the trial Court to call upon the applicants to make their stand
clear as to whether the applicants are desirous to cross
examine the plaintiff, despite the fact that this Court vide its
order dated 23.02.2023 has stayed the impugned order of
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their joining in the suit. So, he would submit that now, the
petitioner can not object the presence of the applicants in
the suit proceedings. He would submit that defendant No.6
can not approbate and reprobate.
8.6 Learned advocate Mr. Raval would further submit that
the trial has commenced and it reached to the evidence of
defendant no.6, the question so raised by defendant No.6 in
the present writ application can be raised and can be decided
on completion of the trial. So, learned advocate Mr. Raval
would further respectfully submit that assuming without
admitting that there is an error of law, while passing the
impugned order which is none still as per settled legal
position of law, same can not be interfered by this Court
while exercising its power under Article 227 of the
Constitution of India.
8.7 To buttress his argument, learned advocate Mr. Raval
would refer and rely upon the judgment of this Court in the
case of Narendrabhai Dalsukhbhai Parmar Vs. Vaishaliben
Narendrabhai Parmar reported in 2022 (0) AIJEL-HC
243787. (relied upon Para-5.2 & 5.4)
9. No other and further submissions made by any of
learned advocates appearing for the respective parties.
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Analysis
10. Before adverting to the issue involved in the matter, I
would to remind myself scope and power available of this
Court while exercising its power under Article 227 of the
Constitution of India which is succinctly discussed in follow-
ing two decisions of Honourable Supreme Court of India.
First one in a case of Sameer Suresh Gupta TR PA Holder vs.
Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the
relevant observation of the aforesaid judgment reads as un-
der:-
"[6] In our view, the impugned order is liable to be set aside be-
cause while deciding the writ petition filed by the respondent the
learned Single Judge ignored the limitations of the High Court's ju-
risdiction under Article 227 of the Constitution. The parameters for
exercise of power by the High Court under that Article were consid-
ered by the two Judge Bench of this Court in Surya Dev Rai v. Ram
Chander Rai and Ors., 2003 6 SCC 675. After considering various
facets of the issue, the two Judge Bench culled out the following
principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-2002
in Section 115 of Code of Civil Procedure cannot and does not af-
fect in any manner the jurisdiction of the High Court under Articles
226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the
High Court, against which remedy of revision has been excluded by
the Code of Civil Procedure Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for cor-
recting gross errors of jurisdiction, i.e. when a subordinate Court is
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found to have acted (i) without jurisdiction - by assuming jurisdiction
where there exists none, or (ii) in excess of its jurisdiction - by over-
stepping or crossing the limits of jurisdiction, or (iii) acting in fla-
grant disregard of law or the rules of procedure or acting in violation
of principles of natural justice where there is no procedure speci-
fied, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate Courts within the bounds of
their jurisdiction. When the subordinate Court has assumed a juris-
diction which it does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available is being exer-
cised by the Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdic-
tion, none is available to correct mere errors of fact or of law unless
the following requirements are satisfied: (i) the error is manifest and
apparent on the face of the proceedings such as when it is based
on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned
thereby.
(6) A patent error is an error which is self-evident, i.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate
Court has chosen to take one view, the error cannot be called gross
or patent.
(7) The power to issue a writ of certiorari and the supervisory juris-
diction are to be exercised sparingly and only in appropriate cases
where the judicial conscience of the High Court dictates it to act lest
a gross failure of justice or grave injustice should occasion. Care,
caution and circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during the pen-
dency of any suit or proceedings in a subordinate Court and the er-
ror though calling for correction is yet capable of being corrected at
the conclusion of the proceedings in an appeal or revision preferred
there against and entertaining a petition invoking certiorari or super-
visory jurisdiction of High Court would obstruct the smooth flow
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and/or early disposal of the suit or proceedings. The High Court
may feel inclined to intervene where the error is such, as, if not cor-
rected at that very moment, may become incapable of correction at
a later stage and refusal to intervene would result in travesty of jus-
tice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdic-
tion will not covert itself into a Court of Appeal and indulge in re-ap-
preciation or evaluation of evidence or correct errors in drawing in-
ferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory juris-
diction are almost similar and the width of jurisdiction exercised by
the High Courts in India unlike English Courts has almost obliter-
ated the distinction between the two jurisdictions. While exercising
jurisdiction to issue a writ of certiorari the High Court may annul or
set aside the act, order or proceedings of the subordinate Courts
but cannot substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only give suitable
directions so as to guide the subordinate Court as to the manner in
which it would act or proceed thereafter or afresh, the High Court
may in appropriate cases itself make an order in supersession or
substitution of the order of the subordinate Court as the Court
should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para
49)
"(a) A petition under Article 226 of the Constitution is different from
a petition under Article 227. The mode of exercise of power by the
High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ
petition. The history of the conferment of writ jurisdiction on High
Courts is substantially different from the history of conferment of the
power of superintendence on the High Courts under Article 227 and
have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power
of superintendence under Article 227 of the Constitution, interfere
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with the orders of tribunals or Courts inferior to it. Nor can it, in ex-
ercise of this power, act as a Court of appeal over the orders of the
Court or tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that would also op-
erate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of
their power of superintendence have been repeatedly laid down by
this Court. In this regard the High Court must be guided by the prin-
ciples laid down by the Constitution Bench of this Court in Waryam
Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the prin-
ciples in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC
215] have been repeatedly followed by subsequent Constitution
Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the
High Court in exercise of its jurisdiction of superintendence can in-
terfere in order only to keep the tribunals and Courts subordinate to
it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can
interfere in exercise of its power of superintendence when there
has been a patent perversity in the orders of the tribunals and
Courts subordinate to it or where there has been a gross and mani-
fest failure of justice or the basic principles of natural justice have
been flouted.
(h) In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because an-
other view than the one taken by the tribunals or Courts subordi-
nate to it, is a possible view. In other words the jurisdiction has to
be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part of
the basic structure of the Constitution by the Constitution Bench of
this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261
: 1997 SCC (L&S) 577] and therefore abridgment by a constitu-
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tional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not and cannot cut
down the ambit of High Court's power under Article 227. At the
same time, it must be remembered that such statutory amendment
does not correspondingly expand the High Court's jurisdiction of su-
perintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable
principle. In an appropriate case, the power can be exercised suo
motu.
(l) On a proper appreciation of the wide and unfettered power of the
High Court under Article 227, it transpires that the main object of
this article is to keep strict administrative and judicial control by the
High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial,
is to maintain efficiency, smooth and orderly functioning of the en-
tire machinery of justice in such a way as it does not bring it into
any disrepute. The power of interference under this article is to be
kept to the minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure and unpol-
luted in order to maintain public confidence in the functioning of the
tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not
to be exercised just for grant of relief in individual cases but should
be directed for promotion of public confidence in the administration
of justice in the larger public interest whereas Article 226 is meant
for protection of individual grievance. Therefore, the power under
Article 227 may be unfettered but its exercise is subject to high de-
gree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be coun-
terproductive and will divest this extraordinary power of its strength
and vitality."
(emphasis supplied)
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10.1 The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein
the Hon'ble Supreme Court of India has held as under:-
"15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel.Garment Craft,
2019 SCC OnLine Del 11943] is contrary to law and cannot be sus-
tained for several reasons, but primarily for deviation from the lim-
ited jurisdiction exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory juris-
diction 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 deci-
sion on facts and conclusion, for that of the inferior Court or tri-
bunal.[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar,
(2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exer-
cised is in the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental princi-
ples of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like 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.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-
102, para 6)
"6. The scope and ambit of exercise of power and jurisdiction by a
High Court under Article 227 of the Constitution of India is exam-
ined and explained in a number of decisions of this Court. The ex-
ercise of power under this article involves a duty on the High Court
to keep inferior Courts and tribunals within the bounds of their au-
thority 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 un-
limited prerogative to correct all kinds of hardship or wrong deci-
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sions 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 in-
justice 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 find-
ings of 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 per-
son can possibly come to such a conclusion, which the Court or tri-
bunal has come to."
(emphasis supplied)
11. Now, adverting to the facts of case and issue germen in
present writ application, as to whether the trial Court has
committed any serious error of law or jurisdictional error
while allowing the impugned application thereby allowed
the applicants to be joined as co-plaintiffs in the suit ?
12. To appreciate the submissions made by the learned
advocates for the respective parties, I would like to refer
Order 1 Rule 10 (2) of CPC, which reads as under :-
"ORDER I-PARTIES OF SUITS
Rule 10 (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
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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."
13. The principal submission made by the learned advocate
Mr. Vimal Patel for the petitioner would be in relation to
issue of limitation and in relation to joining of applicants as
co-plaintiffs would be time barred for them to challenge sale
deeds in question. The argument so canvassed by the
learned Mr. Patel may look attractive but require rejection as
it is contrary to the aforesaid provisions of law.
14. The plain reading of Oder 1 rule 10 (2) of CPC would
suggest that the Court may at any stage of proceedings
either upon or without application of either party, join any
person who is necessary party. So, what is required to be
considered while adjudicating such application for joining
party in such suit as to whether party proposed to be joined
is a necessary and or proper party or not. The question of
limitation and other factors would not germane while
adjudicating joining party application, otherwise said
provision become otiose.
15. Learned advocate Mr. Patel has neither submitted nor
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addressed on the aforesaid aspect, thereby, would not
contended that applicants are neither necessary nor proper
party. Be that as it may, the Court is required to consider
application of joining party within the scope and ambit of
under Order 1 rule 10(2) of CPC and if it is found that the
applicants are necessary and or proper parties then, it
requires to allow such application. Once such proposed party
joined in the suit thereafter, question of his entitlement to
get relief if joined as co-plaintiff or any relief to be passed
against him if joined as co-defendant would arise.
16. It would be profitable to refer the decisions of Hon'ble
Supreme Court of India in the case of Mumbai International
Airport Pvt. Ltd. Vs. Regency Convention Centre and
Hotels Pvt. Ltd. and others reported in (2010) 7 SCC 417,
more particularly in Para- 13, 14 & 15.
"13. The general rule in regard to impleadment of parties is that the
plaintiff in a suit, being dominus litis, may choose the persons against
whom he wishes to litigate and cannot be compelled to sue a person
against whom he does not seek any relief. Consequently, a person
who is not a party has no right to be impleaded against the wishes of
the plaintiff. But this general rule is subject to the provisions of Order I
Rule 10(2) of Code of Civil Procedure (`Code' for short), which
provides for impleadment of proper or necessary parties. The said sub-
rule is extracted below:
10 (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
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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."
14. The said provision makes it clear that a court may, at any stage
of the proceedings (including suits for specific performance), either
upon or even without any application, and on such terms as may
appear to it to be just, direct that any of the following persons may be
added as a party: (a) any person who ought to have been joined as
plaintiff or defendant, but not added; or (b) any person whose
presence before the court may be necessary in order to enable the
court to effectively and completely adjudicate upon and settle the
question involved in the suit. In short, the court is given the discretion
to add as a party, any person who is found to be a necessary party or
proper party.
15. A `necessary party' is a person who ought to have been joined
as a party and in whose absence no effective decree could be passed
at all by the Court. If a `necessary party' is not impleaded, the suit
itself is liable to be dismissed. A `proper party' is a party who, though
not a necessary party, is a person whose presence would enable the
court to completely, effectively and adequately adjudicate upon all
matters in disputes in the suit, though he need not be a person in
favour of or against whom the decree is to be made. If a person is not
found to be a proper or necessary party, the court has no jurisdiction
to implead him, against the wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in a suit property, after the
suit is decided against the plaintiff, will not make such person a
necessary party or a proper party to the suit for specific performance."
17. Thus, while adjudicating impugned application, the trial
Court was not required to examine issue of limitation so
raised by the defendant no.6 if considered, having so
observed earlier, provisions of under Order I rule 10(2) of
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CPC become otiose. Nonetheless, applicability of Section 21
of Limitation Act would requires to be examined by trial
Court while adjudicating the suit and so also deciding prayers
made in the suit.
18. So far as the decisions cited by the learned advocate
Mr. Patel for the petitioner would not ipso-facto applied as
at this stage, the Court require to consider only one fact as
to whether applicants are necessary and or a proper parties
or not.
19. The question of limitation, right of applicants to claim
reliefs in the suit and their entitlement to claim any share in
the suit property etc. are issues to be raised and to be
decided by the trial Court on completion of the trial of the
suit. So, at this stage, this Court would also neither like to go
into nor examined and accept such submissions made by the
learned advocate Mr. Patel for the petitioner but only
observing that it is open for the defendant No.6 to raise all
these issues before the trial Court germane from the
pleading and evidence to be laid by the parties in that
regards.
20. Having appreciated the arguments canvassed by the
learned advocates appearing for the respective parties, keep
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the aforesaid provision of law in mind, plaintiff being
dominus litis not objecting impugned application and taking
into account ratio of Mumbai International (supra), if
applied to the case on hand, predecessor of applicants
happens to be brother of original plaintiff having question
sale-deeds executed in relation to the suit property which
alleged to have been unauthorisdely sold by defendant No. 2
to 5 in favour of defendant No.1 in turn defendant No.6 and
having claimed their right, title, and interest in the suit
property belong to their forefathers, I am of the view that
the applicants are necessary and proper parties in the suit
proceedings.
21. Even otherwise, as per settled legal position of law and
as per ratio of the case of Sameer Suresh Gupta (supra) and
Garment Craft (supra) merely some error of law on the part
of the trial Court while passing order, is no ground to
interfere by this Court while exercising its power under
Article 227 of the Constitution of India as stated herein
above. Furthermore, trial of the suit is in mid-way, Once
plaint get amended and applicants filed their pleadings
thereby, defendant no.6 has all right to amend his written
statement. The parties can raise all factual and legal
contentions, thereafter necessary issues may be framed by
the trial Court and parties are at liberty to lead their
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evidence in support of their pleadings and on completion of
the trial of the suit, all these issues can be examined and
adjudicated by the trial Court in accordance with law. Thus,
at this stage, no serious prejudice caused to the defendant
No.6 when the trial Court has permitted applicants to be
joined as co-plaintiffs. Thus, the order impugned would not
suffer from any procedural irregularity and or illegality. I do
not find any infirmity in the order impugned in writ
application.
Conclusion
22. The upshot of the aforesaid discussion, observation,
and reasons, I am of the view that the order impugned in the
present writ application does not suffers from any serious
error of law and or jurisdictional error, whereby, no
interference of this Court is required while exercising its
power under Article 227 of the Constitution of India. Thus,
present writ application is found meritless and requires to be
dismissed and is hereby dismissed.
23. Ad- interim relief granted earlier stands vacated
forthwith. Rule is discharged. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
