Gujarat High Court
Jinabhai Jerambhai Borda vs Anvar Abbas Tai on 23 June, 2025
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6646 of 2019
==========================================================
JINABHAI JERAMBHAI BORDA & ANR.
Versus
ANVAR ABBAS TAI & ORS.
==========================================================
Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1,2
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5,6,7
MR MJ MEHTA(5797) for the Respondent(s) No. 10,11,8,9
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1,2,3
MR SAURABH J MEHTA(2170) for the Respondent(s) No. 10,11,8,9
NOTICE SERVED for the Respondent(s) No. 12,13,14,15,16,17,18
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/06/2025
ORAL ORDER
1. Heard learned advocate Mr. Jigar P. Raval for the
petitioners and learned advocate Mr. Saurabh J. Mehta for
respondent No. 8, 9, 10 & 11 and learned advocate Mr.
Premal Rachh for respondents No. 1, 2 & 3.
2. Rule returnable forthwith. Learned advocate Mr.
Saurabh J. Mehta and learned advocate Mr. Premal Rachh
waive service of notice of rule on behalf of their respective
respondents.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following reliefs :-
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue a writ of certiorari
appropriate writ, order and /or or direction for quashing and setting
aside the impugned order dated 10/01/2019 passed by the Ld.
Additional Civil Judge, Surat below application Ex.25 in Regular Civil
Suit No.6/2018.
(C) During the pendency and till final disposal of this petition, by
way of interim relief, Your Lordships may be pleased to stay the
implementation, operation and execution of the impugned order dated
10/01/2019 passed by the Ld. Additional Civil Judge, Surat below
application Regular Civil Suit No.6/2018. Ex.25 in
(D) Any other relief deemed just and proper may please be granted
in the interest of justice."
Facts of the case.
4. The petitioners herein are original plaintiffs and
respondents No. 1 to 7 are original defendants, whereas
other respondents are proposed parties - defendants who
are allowed to be joined in the suit filed by the petitioners
herein having allowed their application filed under Order 1 R.
10 of CPC.
4.1 The plaintiffs having entered into an agreement to sell
with predecessor of original defendant Nos. 1 to 7, have filed
suit for specific performance in relation to suit properties.
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
4.2 It appears that pending suit proceedings respondent
No. 8 to 18 have filed impugned application below Exh. 25 in
the suit to be joined as a party defendant as according to the
applicants of the impugned application, they are having right
title interest in the suit property and in fact they are in
possession of the suit properties.
4.3 The impugned application was objected by the
plaintiffs contending inter-alia that the suit was for specific
performance, except the parties to the agreement to sell, no
one else can be joined in the suit.
4.4 After hearing the parties, the trial Court vide its order
dated 10.01.2019 passed below Exh. 25 allowed the
impugned application.
4.5 Feeling aggrieved and dissatisfied with the impugned
order, original plaintiffs have preferred the present writ
application.
Submission of the petitioners- original plaintiffs
5. Learned advocate Mr. Jigar Raval for the petitioners
would submit that the order impugned is ex-facie bad in law,
erroneous, perverse and contrary to the settled principle of
law and requires to be quashed and set aside. He would
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
further submit that the impugned application filed by newly
added parties are misconceived at all, inasmuch as the
parties were undisputedly not the party to the agreement to
sell, for which suit for specific performance has been
preferred.
5.1 Learned advocate Mr. Raval would further submit that
as per settled legal position of law in a suit for specific
performance, except party to agreement, no one can be
allowed to be joined against the wish of the plaintiffs. He
would submit that merely because an independent suit has
been filed by the proposed parties against plaintiffs would
not be a ground to allow such impugned application.
5.2 To buttress his argument, learned advocate Mr. Raval
would refer and rely upon the decision of the Hon'ble Apex
Court in the case of Gurmit Singh Bhatia Vs. Kiran Kant
Robinson and others reported in (2020) 13 SCC 773, more
particularly para Nos. 5.1, 5.5 and 5.6 which reads as under :-
"5.1 At the outset, it is required to be noted that the original plaintiffs
filed the suit against the original owner - vendor - original defendant
no.1 for specific performance of the agreement to sell with respect to
suit property dated 3.5.2005. It is an admitted position that so far as
agreement to sell dated 3.5.2005 of which the specific performance is
sought, the appellant is not a party to the said agreement to sell. It
appears that during the pendency of the aforesaid suit and though
there was an injunction against the original owner - vendor restraining
him from transferring and alienating the suit property, the vendor
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
executed the sale deed in favour of the appellant by sale deed dated
10.07.2008. After a period of approximately four years, the appellant
filed an application before the learned trial Court under Order 1 Rule
10 of the CPC for his impleadment as a defendant. The appellant
claimed the right on the basis of the said sale deed as well as the
agreement to sell dated 31.3.2003 alleged to have been executed by
the original vendor. The said application was opposed by the original
plaintiffs. The learned trial Court despite the opposition by the original
plaintiffs allowed the said application which has been set aside by the
High Court by the impugned judgment and order. Thus, it was an
application under Order 1 Rule 10 of the CPC by a third party to the
agreement to sell between the original plaintiffs and original defendant
no.1 (vendor) and the said application for impleadment is/was opposed
by the original plaintiffs. Therefore, the short question which is posed
for consideration before this Court is, whether the plaintiffs can be
compelled to implead a person in the suit for specific performance,
against his wish and more particularly with respect to a person against
whom no relief has been claimed by him?
5.5 It is further observed and held that in a suit for specific
performance of the contract to sell the lis between the vendor and the
persons in whose favour agreement to sell is executed shall only be
gone into and it is also not open to the Court to decide whether any
other parties have acquired any title and possession of the contracted
property. It is further observed and held by this Court in the aforesaid
decision that if the plaintiff who has filed a suit for specific performance
of the contract to sell, even after receiving the notice of claim of title
and possession by other persons (not parties to the suit and even not
parties to the agreement to sell for which a decree for specific
performance is sought) does not want to join them in the pending suit,
it is always done at the risk of the plaintiff because he cannot be forced
to join the third parties as party defendants in such suit. The aforesaid
observations are made by this Court considering the principle that
plaintiff is the dominus litis and cannot be forced to add parties against
whom he does not want to fight unless there is a compulsion of the
rule of law.
5.6 Therefore, considering the decision of this Court in the case of
Kasturi (supra), the appellant cannot be impleaded as a defendant in
the suit filed by the original plaintiffs for specific performance of the
contract between the original plaintiffs and original defendant no.1 and
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
in a suit for specific performance of the contract to which the appellant
is not a party and that too against the wish of the plaintiffs. The
plaintiffs cannot be forced to add party against whom he does not want
to fight. If he does so, in that case, it will be at the risk of the plaintiffs."
(emphasis supplied)
5.3 Making the above submissions, learned advocate Mr.
Raval would request this Court to allow the writ application.
Submission of the respondents- newly added respondents
6. Per contra, learned advocate Mr. Saurabh Mehta
appearing for the applicants of the impugned application
(newly added party) would submit that there is no error
committed by the trial Court while allowing the impugned
application, thereby joined the applicants in the suit. He
would further submit that there are ample evidence
submitted on record which shows that the applicants are
occupying suit land and having direct interest in the outcome
of the suit proceedings and thereby, necessary and proper
party to the suit. He would further submit that the applicants
have already questioned the agreement to sell executed by
predecessor of respondent Nos. 1 to 7 in favour of original
plaintiffs by filing Regular Civil Suit No. 349 of 2018, which is
pending for its adjudication before the trial Court and in fact
both the suits requires to be consolidated whereby there
would not be any conflict of decree in future.
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
6.1 Learned advocate Mr. Mehta would further submit that
there would not be any prejudice cause to the plaintiffs if
the applicants would be joined in the suit proceedings,
inasmuch as original owner of the suit property now may not
be having any interest to pursue the suit rigorously and may
not fight as expected as an original owner, having sold the
suit land to the applicants.
6.2 To buttress his argument, learned advocate Mr. Mehta
would refer and rely upon the decisions of the Hon'ble Apex
Court in the case of Mahalaxmi Co-operative Housing
Society Limited and Etc. Vs. Ashabhai Atmaram Patel (D)
through Lrs. Reported in 2013 (4) SCC 404 more particularly
para No. 43 & 44 which reads as under :-
"43. We are also not much impressed by the argument of the
learned senior counsel appearing for the respondent that the trial court
has committed an error in not consolidating the various suits including
Civil Suits No. 292/1993 and 681/1992 to be tried together as ordered
by the District Court in its order dated 29.08.2006 in Civil Misc.
Application No. 16/2005. Section 24 of the CPC only provides for
transfer of any suit from one court to another. The court has not
passed an order of consolidating all the suits. There is no specific
provision in the CPC for consolidation of suits. Such a power has to be
exercised only under Section 151 of the CPC. The purpose of
consolidation of suits is to save costs, time and effort and to make the
conduct of several actions more convenient by treating them as one
action. Consolidation of suits is ordered for meeting the ends of justice
as it saves the parties from multiplicity of proceedings, delay and
expenses and the parties are relieved of the need of adducing the
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
same or similar documentary and oral evidence twice over in the two
suits at two different trials. Reference may be made to the judgment of
this Court in Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria
(2007) 2 SCC 551.
44. The transfer of the suits from one court to another to be tried
together will not take away the right of the parties to invoke Order XXIII
Rule 3 and there is also no prohibition under Order XXIII Rule 3 or
Section 24 of the CPC to record a compromise in one suit. Suits
always retain their independent identity and even after an order of
consolidation, the court is not powerless to dispose of any suit
independently once the ingredients of Order XXIII, Rule 3 has been
satisfied."
In the case of Muhammed VS. Raveenadra Nair and
others passed in OP(C) No. 1279 of 2022 passed by the
Kerala High Court, more particularly Para-9 which reads as
under :-
"9. The Court can order a joint trial if it appears to it that some
common question of law or fact arises in two or more proceedings or
that the right to the relief claimed in them is in respect of or arises out
of the same transaction or series of transactions or that for some other
reason it is desirable to make an order for joint trial. An order for joint
trial is considered to be useful in that it will save the expenses of two
attendance by counsel and witnesses, and the trial Judge will be
enabled to try the two actions at the same time and take common
evidence in respect of both the claims. A joint trial is ordered when a
Court finds that the ordering of such a trial would avoid overlapping of
evidence being taken in two or more causes, and it will be more
convenient to try them together in the interests of the parties and in the
interests of an effective trial of the causes (Vide: State Bank of India v.
Ranjan Chemicals Limited [(2007) 1 SCC 97]. In Ranjan Chemicals
Limited, the Supreme Court held that the consent of the parties is not
necessary for the consolidation of suits."
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
6.3 Lastly, learned advocate Mr. Mehta would submit that if
this Court would not accept any of the submissions made by
him, the applicants may be permitted to file an appropriate
application for consolidation of the suit proceedings.
6.4 Learned advocate Mr. Rachh appearing for some of
defendants would adopt the arguments so canvassed by
learned advocate Mr. Mehta and request this Court to reject
present writ application..
Point for consideration.
7. The short question for consideration is as to whether a
stranger to the agreement to sell can be joined as a party
defendants in a suit for specific performance or not?
Analysis
8. As such the issue germane in the present writ
application, is no longer remain res-integra having already
been decided by the Hon'ble Apex Court in the case of
Kasturi Vs. Uyyamperumal and others reported in 2005(6)
SCC 773, wherein the principle laid down that the suit for
specific performance, the person who is not party to such
agreement can not be joined in such suit against the wish of
plaintiff who is dominus litis.
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
9. This principle is again reiterated by the Hon'ble Apex
Court in the case of Mumbai International Airport Vs.
Regency Convention Centra & Hotels and others reported
2010 (7) SCC 417.
10. Again, the Hon'ble Apex Court has reiterated the same
principle in more effective manner in the case of Gurmit
Singh Bhatia (supra) wherein held in para-5.5 & 5.6 which is
reproduce herein.
"5.5 It is further observed and held that in a suit for specific
performance of the contract to sell the lis between the vendor and the
persons in whose favour agreement to sell is executed shall only be
gone into and it is also not open to the Court to decide whether any
other parties have acquired any title and possession of the contracted
property. It is further observed and held by this Court in the aforesaid
decision that if the plaintiff who has filed a suit for specific performance
of the contract to sell, even after receiving the notice of claim of title
and possession by other persons (not parties to the suit and even not
parties to the agreement to sell for which a decree for specific
performance is sought) does not want to join them in the pending suit,
it is always done at the risk of the plaintiff because he cannot be forced
to join the third parties as party defendants in such suit. The aforesaid
observations are made by this Court considering the principle that
plaintiff is the dominus litis and cannot be forced to add parties against
whom he does not want to fight unless there is a compulsion of the
rule of law.
5.6 Therefore, considering the decision of this Court in the case of
Kasturi (supra), the appellant cannot be impleaded as a defendant in
the suit filed by the original plaintiffs for specific performance of the
contract between the original plaintiffs and original defendant no.1 and
in a suit for specific performance of the contract to which the appellant
is not a party and that too against the wish of the plaintiffs. The
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
plaintiffs cannot be forced to add party against whom he does not want
to fight. If he does so, in that case, it will be at the risk of the plaintiffs."
(emphasis supplied)
11. Thus, in view of the aforesaid clear pronouncement of
law by the Hon'ble Apex Court, if apply to the facts of the
present case, it remain undisputed that the applicants of the
impugned application are not party to the agreement to sell
executed between the plaintiffs with predecessor of original
defendants. When, the plaintiffs are not willing to join
applicants in the suit proceedings might be occupying suit
premises on the strength of certain documents which are
placed before the trial Court along with the impugned
applications, they can not be allowed to join in such a suit,
especially when no relief has been claimed by the plaintiffs
against them.
12. The law on the issue is very much clear and not required
to discuss any more except as referred hereinabove. It is not
a case of any of the applicants that they are holding valid and
effective registered sale deed executed by original owner in
their favour thereby step into shoe of original owner that
too prior to filing of the suit. So, in absence of any title
documents stood in their name, merely on strength of
possession of suit properties, they can not be allowed to join
in the suit for specific performance that too against will of
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
plaintiff.
13. In the aforesaid facts and circumstances and position of
law as on date, the impugned order suffers from gross
illegality, irregularity and passed contrary to the settled
principle of law, requires to be interfered by this court while
exercising its power under Article 227 of the Constitution of
India (See : Waryam Singh v/s Amarnath - AIR 1954 SC 215)
14. So far as the judgment cited by the learned advocate
Mr. Mehta for the respondents would not be applicable in
the facts of the present case in as much as in none of the
decisions, any contrary principles laid down that referred
herein above.
15. Lastly, so far as the request made by the learned
advocate Mr. Mehta for the respondents that the applicants
may be allowed to request the competent Court for
consolidation of the suit is concerned, it is always open for
the applicants to file an appropriate application before the
competent Court for consolidation of both the suits, i.e. one
filed by plaintiffs herein and another filed by applicants of
the impugned application. As and when such an application
will be filed, the same may be decided by the competent
Court in accordance with law after giving proper opportunity
NEUTRAL CITATION
C/SCA/6646/2019 ORDER DATED: 23/06/2025
undefined
of hearing to the parties concerned.
Conclusion
16. In view of the aforesaid, the present writ application
requires to be allowed, which is hereby allowed.
16.1 The impugned order dated 10/01/2019 passed by the
Additional Civil Judge, Surat below application Ex.25 in
Regular Civil Suit No.6/2018 is hereby quashed and set aside.
16.2 Consequently, the impugned application is hereby
allowed. Rule made absolute.
(MAULIK J.SHELAT,J)
SALIM/
