Gujarat High Court
Heirs Of Govabhai Panchabhai Patel ... vs Shri Virani Estate Corporation on 15 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6575 of 2022
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HEIRS OF GOVABHAI PANCHABHAI PATEL (HEIR OF PATEL
PANCHABHAI KURJIBHAI) & ORS.
Versus
SHRI VIRANI ESTATE CORPORATION & ORS.
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Appearance:
MS POONAM M MAHETA(11265) for the Petitioner(s) No.
1,1.1,1.2,2,2.1,2.2,3,3.1,4,5,6,7,7.1,7.1.1,7.1.2
NOTICE SERVED for the Respondent(s) No. 2
VMP LEGAL(7210) for the Respondent(s) No. 1,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/07/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Vimal
M. Patel waives service of notice of rule on behalf of
respondents No. 1, 3 to 8. Though served none appeared on
behalf rest of the respondents.
2. Heard learned advocate Mr. Rutvij Oza for the
petitioners and learned advocate Mr. Vimal Patel for the
contesting respondents.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief.
"(A) This Hon'ble Court may be pleased to issue a writ of certiorari or
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writ in nature of certiorari or any other appropriate writ, order or
direction quashing and setting aside the impugned order dated
31.01.2022 passed by the learned Principal District & Sessions Judge,
Rajkot below application at Exhibit-10 in Regular Civil Appeal No.9 of
2017 and further be pleased to allow the application at Exhibit-10 as
prayed for;
(B) Pending admission, hearing and final disposal of the petition,
this Hon'ble Court may be pleased to stay the further proceedings of
Regular Civil Appeal No.9 of 2017 pending before the learned Court of
the Principal District & Sessions Judge, Rajkot;
(C) This Hon'ble court may be pleased to pass such and further
order as the nature and circumstances of the case may require."
4. The parties will be referred as far as possible as per
their original position in the suit/appeal.
5. The petitioners herein are original plaintiffs whereas
respondents No.1 to 4 are original defendants. The
respondents No.6 to 8 are proposed party to be joined in the
appeal filed at the instance of the original plaintiffs, which is
pending before Appellate Court.
Short facts of the case
5.1 The petitioners had file Regular Civil Suit No.326 of
2011 in the Court of learned Principal Civil Judge, Rajkot,
praying for declarations and injunction against the
respondent No.1 to 4.
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5.2 In pursuance of the summons issued by the trial Court,
the respondent Nos.1 to 4 appeared before the Court and
had preferred an application under Order 7 Rule 11 of the
Code of Civil Procedure, 1908 for rejection of the plaint vide
Exh. 15.
5.3 After hearing the parties, vide its order dated
01.02.2017, learned 3rd Addl. Civil Judge, Rajkot was pleased
to allow the aforesaid application filed below Exh. 15 and
was pleased to reject the plaint under Order 7 Rule 11(d) of
the Code of Civil Procedure, 1908.
5.4 Being aggrieved and dissatisfied with the judgment and
order dated 01.02.2017 passed by the learned 3rd Additional
Civil Judge, Rajkot in Regular Civil Suit No.326 of 2011, the
petitioners have preferred Regular Civil Appeal No.9 of 2017
under Section 96 read with Order 41 of the Code of Civil
Procedure, 1908 and the same is pending for its adjudication
before the learned Principal District & Sessions Judge,
Rajkot.
5.5 The Principal District & Sessions Judge, Rajkot was
pleased to issue notice in the aforesaid Regular Civil Appeal
No. 9 of 2017 and in pursuance thereto, the respondent
Nos.1 to 4 had appeared before the Court. Respondent
Nos.1 to 4 herein had filed their written objection against
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the appeal filed by the petitioners herein.
5.6 The petitioners came to know that the respondent Nos.
1 to 4 has transferred the property in favour of respondent
Nos.5 to 8 and therefore, the petitioners have preferred an
application under Order 1 Rule 10 (2) read with Order 22
Rule 10 of the Code of Civil Procedure, 1908 with a prayer to
join them as party in the Regular Civil Appeal No.9 of 2017.
5.7 The petitioners preferred an impugned application
below Exh.10, the Appellate Court issued notice to the
proposed parties (respondent Nos.5 to 8 herein). In
pursuance to the notice issued by the trial Court, respondent
Nos.5 to 8 herein had appeared before the Court and filed
their objection against the application below Exh.10.
5.8 The Principal District & Sessions Judge, Rajkot
vide his order dated 31.01.2022 rejected the application filed
by the petitioners at Exh.10.
5.9 Being aggrieved and dissatisfied with the
aforesaid order passed by the appellate Court, plaintiffs -
appellants have preferred the present writ application.
Submission of the petitioners - plaintiffs - appellants
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6. At the outset, learned advocate Mr. Rutvij Oza for the
petitioners would submit that there is total non application
of mind on part of the appellate Court while rejecting the
impugned application and without verifying the fact,
whether proposed respondents are necessary and proper
party or not, rejected the impugned application solely on the
ground that the petitioners- original plaintiffs have already
preferred substantive suit against the proposed
respondents.
6.1 Learned advocate Mr. Oza would further submit that as
such the appellate Court was require to consider one vital
fact that proposed respondents have become owner of the
suit property which they have purchased during the
pendency of suit, but it was not within the knowledge of
appellants, thereby, they could not be joined in the suit, and
having come to know, the impugned application came to be
filed.
6.2 Learned advocate Mr. Oza would further submit that
while deciding the impugned application filed under Order 1
rule 10 (2) read with Order 22 Rule 10 of CPC, the appellate
Court was required to consider whether party proposed is a
necessary and proper party or not, which is not germane
from the impugned order. According to learned advocate Mr.
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Oza that the appellate Court has committed a serious error
of law while rejecting the impugned application.
6.3 Making the above submission, learned advocate Mr.
Oza would request this Court to allow the present writ
application.
Submission of the contesting respondents
7. Per contra, learned advocate Mr. Vimal Patel for the
contesting respondents would submit that as such there is
no error committed by the appellate Court inasmuch as
when the petitioners have already preferred the suit against
the proposed respondents, the impugned application is
misconceived on the part of the petitioners to drag the
proposed respondents in the litigation.
7.1 Learned advocate Mr. Patel would further submit that
as such the petitioners were within their knowledge about
the transaction which has taken place during the pendency
of the suit and once they have not taken any steps to join
proposed respondents in the pending suit, they cannot be
allowed to join at the stage of the appeal.
7.2 Nonetheless, learned advocate Mr. Patel would candid
in his submission that scope and ambit of Order 1 Rule 10 (2)
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read with Order 22 Rule 10 of CPC is not discussed in the
impugned order but ultimate conclusion of the appellate
Court is just and reasonable, which may not be interfered by
this Court while exercising its power under Article 227 of the
Constitution of India.
Analysis
8. The facts which are narrated hereinabove are not much
in dispute. This Court would not like to go much deep into
the matter but after going through the impugned order, it
appears that there is no proper appreciation of facts by the
appellate Court vis-a-vis the provisions of law under which
the impugned application came to be filed by the appellants
- original plaintiffs.
9. Whenever, the application came to be filed by the
original plaintiffs/ appellants to join proposed defendants/
respondents in the pending suit/appeal, the Court concerned
is required to first take into account as to whether the
proposed party is either necessary or proper party or not. No
other and further factors and consideration requires to be
taken into account as jurisdiction of the Court while
adjudicating the application for joining party is confined in
narrow compass and it has to decide such application within
the scope and ambit of his power under Order 1 Rule 10 (2)
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of CPC and in given case Order 22 Rule 10 of CPC.
10. When this Court has gone through the impugned order,
it appears that only reason assigned by the appellate Court
while rejecting the impugned application that the
appellants/ plaintiffs have already instituted independent
suit being Special Civil Suit No. 26 of 2018 against proposed
respondents, thereby challenge their sale-deed executed by
the original defendants, on such ground alone, the impugned
application came to be rejected.
11. According to this Court, such reason is fallacious,
erroneous, perverse and contrary to provision of law and in
that eventuality, interference of this Court in the matter
requires as in the case on hand, Appellate Court has not
properly exercised its power so vested in it and on erroneous
observation, the appellate Court has rejected impugned
application.
12. It is true that this Court should sparingly exercise its
power under Article 227 of the Constitution of India while
examining the order passed by the Civil Court but at the
same time, if it is found that the order impugned is either ex
facie erroneous, perverse and or contrary to the provisions
of law, having not properly exercised its power so vested in
it, then to keep the Civil Court within its bound, such power
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requires to be exercised in appropriate case, which is the
present case (See : Waryam Singh v/s Amarnath - AIR 1954
SC 215).
Conclusion
13. In view of the aforesaid observation, discussions and
reasons, the impugned order is held to be bad in law and
same is hereby quashed and set aside.
14. The matter is remanded back to the Appellate Court
and the impugned application filed below Exh. 10 in Regular
Civil Appeal No. 9 of 2017 is restored back to its file and to
decide it afresh on its merit.
15. The appellate Court is hereby directed to hear and
decide afresh the application filed below Exh. 10 preferably
within a period of three months from the date of receipt of
copy of this order.
16. The impugned application be decided after giving proper
opportunity of hearing to all parties concerned and decide it
in accordance with law without being influenced by any of
the observations made herein above by this Court.
17. Consequently the present writ application is partly
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allowed. Rule is made absolute to the aforesaid extent.
Interim relief granted earlier if any, stands vacated
forthwith.
(MAULIK J.SHELAT,J)
SALIM/
