Gujarat High Court

Mali Kapurji Vaghaji vs State Of Gujarat on 22 April, 2025

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                              C/AO/202/2023                                        JUDGMENT DATED: 22/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                           R/APPEAL FROM ORDER NO. 202 of 2023
                                                            With
                                         CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
                                          In R/APPEAL FROM ORDER NO. 202 of 2023

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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                                    Approved for Reporting                        Yes            No

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                                                        MALI KAPURJI VAGHAJI
                                                                Versus
                                                      STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1
                       MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 2
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                             Date : 22/04/2025

                                                            ORAL JUDGMENT

1. Heard learned counsel Mr. Nishit Gandhi for the

Appellant, learned counsel Mr. Kishore Prajapati for

Respondent No. 2, and learned AGP Mr. Akash Chhaya for

Respondent No. 1.

2. Admit. Learned counsel Mr. Kishore Prajapati waives

service of notice of admission on behalf of Respondent No.2.

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Learned AGP Mr. Akash Chhaya waives service of notice of

admission on behalf of Respondent No.1. With the consent of

respective learned counsel, appeal is taken up today for its

final hearing.

3. The present appeal is preferred under Order 43 Rule 1(u)

of the Code of Civil Procedure, 1908 (hereinafter referred to as

'the CPC') against the judgment and decree dated 23rd

February 2019, passed by 2nd Additional District Judge,

Banaskantha in Regular Civil Appeal No. 15 of 2012. The

appellate court has remanded the matter back to the trial

court.

3.1 The parties will be referred to as per their status before

the trial court.

4. Short Facts :

4.1 The appellant herein is the original plaintiff, who filed

Regular Civil Suit against Respondents No. 2 and 3. The suit

was filed seeking permanent injunction against the defendants,

as according to the plaintiff, he became the owner of the suit

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property having purchased it by way of a registered sale deed

from cousin brothers of the defendant. The trial court decreed

the suit in favour of the plaintiff. Defendant No. 1 filed

Regular Civil Appeal No. 15 of 2012 before the appellate court

challenging the judgment and decree passed by the trial court.

It appears the State was joined as Respondent No. 3 in the

appeal albeit, there was no order passed by the appellate court

nor any application under Order I Rule 10(2) of the CPC filed

by defendant No. 1 to join State in appeal. Be that as it may,

State was joined in the appeal. After hearing the parties, the

appellate court partly allowed the appeal and remanded the

matter back to the trial court, observing that the State is a

necessary party and the trial court was directed to re-

adjudicate the suit on merits.

4.2 Feeling aggrieved and dissatisfied by the judgment and

decree passed by the appellate court, the original plaintiff has

preferred the present Appeal from Order.

5. Submissions on behalf of appellant-plaintiff:

5.1 Learned counsel Mr. Nishit Gandhi for the appellant-

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original plaintiff would submit that, as per the record of

appeal filed by Defendant No. 1, there is no indication that

how State was joined as a party in the appeal proceedings.

5.2 Learned counsel Mr. Gandhi would submit that it is not

the case of defendant No. 1 that the land in question belongs

to the government. He would further submit that, there is no

whisper in the pleadings of how or why the State should be a

necessary and or proper party to the proceedings.

5.3 Learned counsel Mr. Gandhi would further submit that,

the appellate court committed a gross error of fact as well as

law by joining the State in the appeal and thereafter

remanding the matter. It is submitted that learned assistant

government pleader had not provided any assistant to appellate

court and even not a case of any one that State has either

question revenue entry mutated in favour of plaintiff or any

legal action taken by State against plaintiff to get possession of

suit property from plaintiff.

5.4 Learned counsel Mr. Gandhi would further submit that,

the trial court, after framing necessary issues, held that the

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plaintiff to be the title-holder of the property having purchased

it from its owner who happens to be deemed tenant. As such

nothing on record to remotely show that State has any direct

interest in subject suit property.

5.5 Learned counsel Mr. Gandhi would further submit that,

the suit is filed to protect a private and individual right then,

presence of the State is neither necessary nor proper to

adjudicate the claim of the parties to suit. It is submitted that

no revenue entry stand as on date would indicate that suit

land is Bhudan land thereby belongs to State and wrongly

purchased by the plaintiff.

5.6 Learned counsel Mr. Gandhi would further submit that,

the appellate court's judgment is not only erroneous and

perverse but contrary to the settled principles of law, which

requires to be interfered by this Court. It is submitted that

concept of necessary and or proper party is not properly

appreciated by appellate Court which resulted into miscarriage

of justice.

5.7 Making above submissions, learned counsel Mr. Gandhi

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requested this Court to allow the present appeal.

6. Submissions of respondent No.1 - State

6.1 Learned AGP Mr. Akash Chhaya would submit that, there

is no error in the judgment of the appellate court, while

remanding the matter back to the trial Court and in fact

observations made by the appellate Court would indicate that

the suit land was Bhudan land and thereby presence of State is

necessary for adjudication of suit on merits.

6.2 Learned AGP Mr. Chhaya would further submit that,

when the question of title is framed by the trial court, the

State's presence is essential.

6.3 Lastly, learned AGP Mr. Chhaya would candidly submit

that, it is not clear why the State was joined in the appellate

proceedings and in fact in the absence of effective

representation of the State in the appeal, it would be difficult

for him to assist this Court. Nonetheless, if this Court will

interfer with the impugned judgment and decree, right may be

reserve in favour of State reserves to proceed against

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individuals in connection with suit land in accordance with

law.

7. Submissions on behalf of respondent No.2 - defendant

No.1

7.1 Learned counsel Mr. Kishore Prajapati submitted that, the

defendant No. 1 has not challenged the judgment and decree

on the ground that the State is a necessary/proper party and it

is unclear as to how State was joined in the appellate

proceedings.

7.2 Learned counsel Mr. Prajapati would further submit that,

the defendant No. 1 has a good case on merits, but

unfortunately, the appellate court has not examined merits and

remanded the matter instead.

7.3 Learned counsel Mr. Prajapati would humbly request this

Court that, in case where this Court would come to the

conclusion that presence of State is neither necessary nor

proper then in such circumstances, this Court may remand the

matter back to appellate court to decide the appeal on merits.

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7.4 Making the above submissions, learned counsel Mr.

Prajapati requested this Court not to entertain the present

appeal.

No other and further submissions are made.

8. Analysis :

8.1 The short question falls for consideration of this Court as

to whether the impugned judgment and decree passed by the

appellate court is erroneous, perverse or arbitrary? and

whether any error of law was committed by the appellate

court in remanding the matter back to the trial court for fresh

consideration?.

8.2 The facts, as stated, are not in dispute. The suit was filed

for permanent injunction by the plaintiff based on a registered

sale deed executed in favour of plaintiff by its original owner,

who was, at one point, a tenant of the suit land, cultivating it

on tiller day i.e. 01.04.1957 in accordance with the provisions

of the Bombay Tenancy and Agricultural Lands Act, 1948.

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8.3 The trial court framed necessary issues, none of which

included the requirement of the State being a necessary or

proper party. No order was passed by the appellate court

directing the joinder of the State, and no application under

Order I Rule 10(2) CPC was filed. Be that as it may, it appears

that due to handwritten entry into the memo of appeal, State

was joined as respondent No.3 in the appeal. Such recourse is

not known to law and it shows that how appeal proceedings

are casually undertaken by the appellate Court.

8.4 After going through the judgment and decree passed by

the trial Court, prima facie, it appears that the dispute

between the parties are private in nature wherein plaintiff is

seeking injunction against defendant for not to disturb/interfere

into his possession. Whereas, defendants are claiming right

over the suit land but in none of the case of the parties,

remotely it has been suggested that the suit land belongs to

the State. Even there is nothing on record of suit would

remotely indicate that State is stakeholder qua suit land as

neither any order nor any mutation entry in favour of State

qua suit land. As such prima facie, order passed by revenue

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authority would go counter to what has been observed by

appellate court indicating that State is necessary party having

interest in the subject suit land. It appears that the appellate

court, rather than considering the merits of the appeal,

diverted itself based on irrelevant and extraneous factors.

8.5 At this stage, 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 subrule 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 joined, whether as plaintiff or

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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 ." (emphasis supplied)

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8.6 Thus, according to me, the appellate court erred in

holding that, the State is a necessary and proper party. The

judgment/decree impugned in the present appeal are not only

erroneous and perverse but also contrary to the basic principles

of law which requires interference of this Court while

exercising its appellate power under Order 43 R. 1 (u) of CPC.

8.7 At the same time, the request made by learned counsel

Mr. Prajapati is well founded. Since the appellate court did not

examine the matter on its merits, the matter is required to be

remanded back to the appellate court with a specific

observation that the State is neither a necessary nor proper

party and appellate court should heard and decide the appeal

on its merit germane from the judgment/decree passed by the

trial court. So far request made by learned AGP Mr. Chhaya is

concern, this Court would only observe that in absence of any

prohibitory order passed by any Court including this Court, it

would be for State to take appropriate steps albeit, in

accordance with law in relation to subject suit land.

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9. Conclusion :

9.1 In view of the above, the appeal is partly allowed. The

impugned judgment and decree dated 23rd February 2019

passed by 2nd Additional District Judge, Banaskantha in

Regular Civil Appeal No. 15 of 2012 is hereby quashed and set

aside. The aforesaid Regular Civil Appeal No. 15 of 2012 is

restored to the file of the appellate court to be decided afresh

on its own merits within six (6) months from the date of

receipt of this order as indicated herein above albeit, after

giving an opportunity of hearing to all parties to suit.

9.2. As this Court has already hold that State is neither

necessary nor proper party to appeal/suit proceeding, cause

title of Regular Civil Appeal No. 15 of 2012 be corrected

accordingly by appellate court before proceed to heard the

appeal on its merit.

9.3 It is clarified that this Court has neither gone into nor

examined the merits of the matter.

9.4 The respective parties shall be at liberty to raise all

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contentions before the appellate court.

9.5 There shall be no order as to costs. Direct service is

permitted.