.FO 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 300 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE R.R.JAIN ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes J 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- NARAYANDAS NATHUMAL HEMRAJANI Versus TARABEN KALIMUDDIN MULLA MITAWALA -------------------------------------------------------------- Appearance: MR PC KAVINA of M/S THAKKAR ASSOC. for Petitioners MR SURESH M SHAH for Respondent No. 1 to 4 Respondent No.5 & 6 served MR MUKESH R SHAH for Respondent No. 7 -------------------------------------------------------------- CORAM : MR.JUSTICE R.R.JAIN Date of decision: 06/05/97 ORAL JUDGEMENT Rule. Mr. Shah for respondents Nos.1 to 4 main contesting parties waives service of Rule. Aggrieved by the order passed by the Joint Civil Judge (J.D.), Dahod below Exhibit 54 an application for appointment of Receiver under Section 94 (d) read with Section 151 of the Code of Civil Procedure (the C.P.Code for brief) in Regular Civil Suit No.158 of 1996, the applicants - third parties have filed this revision application. 2. To appreciate the controversy it would be worthwhile to advert to the relevant facts giving rise to this petition. Land bearing final plot No.109 was of ownership of one Manharlal Hakumatsinh Thakore. Out of the said land, a parcel of land admeasuring 1532.40 square metres was sold by the original owner to the present respondents Nos.1 to 4 - original plaintiffs. Similarly, remaining land of final plot No.109 admeasuring 3883.70 square metres was sold to the present petitioner - third parties. It is needless to say that, since a part of final plot No.109 of T.P.Scheme No.1 is sold to the respondents plaintiffs and the remaining part is sold to the present petitioners, the lands of respondents Nos.1 to 4 plaintiffs and the petitioners are situated adjacent to each other and, now, the land purchased by respondents Nos.1 to 4 - plaintiffs is identified as final plot No.109A and that of the present petitioners as 109-B. 3. As the respondents Nos. 1 to 4 made wire fencing around their parcel of land, the Dahod Nagarpalika original defendant in Civil suit No.158 of 1996 issued a notice dated 19.8.1996 to respondents Nos.1 to 4 plaintiffs directing them to remove within a stipulated period as being unauthorised construction. Aggrieved by the said notice, respondents Nos.1 to 4 plaintiffs filed Regular Civil Suit No.158 of 1996 in the court of the Civil Judge (J.D.), Dahod challenging validity of the notice and restraining the Dahod Nagarpalika from disturbing with possession of the suit land. Thus, the subject-matter of the suit is validity and legality of the act of the Dahod Nagarpalika for issuing such notice and a prayer for injunction from disturbing their possession. As alleged by the petitioners - third parties, during the course of hearing, respondents Nos.1 to 4 - plaintiffs applied for appointment of Receiver for preservation of the property contending that some third parties strangers in collusion with the defendant - Dahod Nagarpalika are trying to encroach and make illegal construction. Though the prayer for appointment of Receiver was confined to the parcel of land admeasuring 1532.14 square metres purchased by the respondents but it transpires that the Receiver took possession of the entire parcel of land comprising final plot No.109 out of which land admeasuring about 3883.70 square metres is owned by the third parties present petitioners. Feeling that the rights of the petitioners - third parties are directly affected though their property is not the subject-matter of the suit, they approached the court and applied for stay of operation of the aforesaid order by filing objections vide Exh.51 at Annexure-I dated 14.2.1997. Exercising inherent powers, the court stayed till 17.2.1997 operation of the order passed on 13.2.1997 below Annexure-F application under Order 40 Rule 1. 4. Despite the aforesaid developments, the respondents - plaintiffs once again applied vide Annexure-J Exh.54 dated 15.2.1997 for implementation of the earlier order appointing Receiver and the court without hearing the present petitioners - third parties who had already filed objections vide Exh.51 and at whose instance operation of the order was stayed, passed appropriate order for implementation directing Receiver/ Commissioner to take possession of the of land which also included one possessed by the present petitioners third parties. It is in this background that aggrieved by the last order passed below Annexure-J Exh.54 dated 15.2.1997, the third parties have approached this court under Section 115 of the C.P. Code. 5. Mr.Thakkar, learned Senior Counsel has assailed the order mainly on the following grounds: (1) lack of jurisdiction, (2) the immovable property and preservation thereof is not the subject-matter of the suit and (3) as the suit has become infructuous by subsequent developments, namely, withdrawal of the impugned notice by the Dahod Nagarpalika vide Exh.59, no such orders can be passed. As against that, Mr.S.M.Shah, learned Advocate for respondents Nos.1 to 4 - original plaintiffs has repelled the aforesaid contentions on following grounds: (1) the petitioner has no right to file this petition (2) not maintainable as the order is ad-interim order only (3) suppression of facts (4) ulterior motive to influence the proceedings of Special Civil Application No.108 of 1996 subsequently filed by the respondents plaintiffs in the court of the Civil Judge (S.D.) Godhra. 6. It cannot be gainsaid that in the facts and circumstances of the case in any pending proceeding the court is empowered to appoint Receiver as provided under Order 40 Rule 1 of the C.P. Code or under Section 94 (d) read with Section 151. Similarly, Commissioner can also be appointed on the grounds stated in Section 75 read with Order 26 of the C.P.Code. Here we are mainly concerned with appointment of Receiver since the court has appointed Receiver acceding to the request of the respondents - original plaintiffs for preservation and protection of the property invoking inherent powers and provisions of supplemental proceedings u/s. 94 (d). One of the avowed object of appointment of Receiver is to protect, preserve, improve and manage the property in dispute during pendency of litigation to meet the ends of justice. In other words, immovable property for which Receiver is to be appointed shall be the subject-matter of suit between the parties. During pendency of litigation if the property is not properly managed, protected or preserved may get destroyed adversely affecting the rights of parties defeating the ends of justice. In the instant case, the subject-matter of suit is validity of the notice issued by the original defendant Dahod Nagarpalika requiring the respondents plaintiffs to remove wirefencing alleging unauthorised construction and encroachment. In my view, the right, title or interests and/or possession qua the land in question is no more the subject-matter before the court. Consequently, there was no reason for the court to pass any such order though the question of protection/preservation or management was not for consideration and there was no case for defeating ends of justice merely because the plaintiffs come with some allegations. The suit was not filed for protection or preservation of the land in question. Therefore, the purpose of appointment of Receiver could not be for achieving the object as provided under Section 94 (d) of the C.P.Code. Thus, on the face of it, the order is illegal, patently erroneous and without jurisdiction. 7. Mr.Thakkar, learned Senior Counsel has also argued that, as per subsequent developments, the original defendant - Dahod Nagarpalika has withdrawn the notice, and the suit has become infructuous and therefore no interim order shall survive. It is true that subsequently vide Exh.59 at Annexure-J, the original defendant - Dahod Nagarpalika has withdrawn the impugned notice being the subject-matter of the suit. On the face of it, the suit becomes infructuous. But nonetheless this ground can be available for assailing the legality of the order passed below Exh.54. Of course, such a subsequent development can be taken into consideration by this court while examining the legality, existence and validity of the impugned order. But nonetheless can affect the legality of the impugned order as the day on which the court below passed the order Exh.59 was not in existence. The impugned order is passed on 15.2.1997 whereas the event of withdrawing the impugned notice has taken place on 17.2.1997 at Exh.59. Thus, the court had no occasion to examine the effect of Exh.54. Consequently, this ground may not be available for assailing legality of the impugned order as was passed then, but definitely this court can examine the effect as on today. 8. I am of the opinion that this court while exercising revisional jurisdiction can take into consideration subsequent developments especially when such developments go to the root of the litigation and cause of action. As discussed above, the object of appointing Receiver is to protect, preserve and manage property during pendency of suit (though in this case the immovable property is not the subject-matter of the suit). In other words, such order would be interim in nature remaining in force during pendency only. Now, by subsequent developments, as the suit has become infructuous, even if in a given case appointment is justified, such order cannot be kept in force after termination of proceedings except by any express order in consonance with final order. Under the circumstances the order cannot be upheld. 9. Mr.Shah for the respondents has vehemently argued that the petitioners not being parties to the suit have no right to come before this court and file revision application except with express leave of court. Of course, Mr.Shah has not been able to show any express provision which requires leave of the court. Be that as it may, it is true that the petitioners are third parties to the suit but, on facts, cannot be such as total strangers because the record shows that aggrieved by the first order of appointment of Receiver passed below Annexure-F dated 13.2.1997, the petitioners approached the trial court vide Exh.51 at Annexure-I and filed objections and prayed for stay of operation of the order. Accordingly, exercising inherent powers the trial court stayed operation of the order dated 17.3.1997. Thus, the petitioners though not parties to the suit were very much before the court and at one point of time considering the objections the court had issued appropriate orders. In my view, in these circumstances and facts of this case they have right to approach this court without leave when they are aggrieved by any order. By saying so I do not lay down a broad proposition of law that in all cases a third party can approach this court under Section 115 and challenge legality of any order to which he is not a party. In the facts and circumstances of this case, the petitioners though not parties to the original litigation yet are not totally strangers and had already made their appearance before the court, consequently, in my view, for all purposes are parties to the litigation. What is required under law for proper adjudication of dispute is presence of proper and necessary parties by whatever mode. In a given case, plaintiffs may not join and implead all necessary and proper parties, yet having come to know one can appear before the court and pray for appropriate relief and thereby presence can confer the status as being party. 10. Now assuming that leave of the court as per law is required, then by subsequent amendment the petitioner has already prayed for leave. As per well recognised principle, any amendment made during pendency would relate back to institution unless expressed otherwise. Therefore, shall be deemed to have prayed for leave of course the first order expressly does not refer to any leave granted but the fact that petition on behalf of third party is entertained the court shall be deemed to have granted impliedly as has not been rejected. Therefore, in my view, the contention that the petition is without prior leave of the court is not maintainable. Otherwise also, in my view, looking to Section 115 no leave is required if the jurisdiction is invoked by one present before court but not a party to proceedings. I do not find any express bar to this effect in the said provision. On the contrary, under the provisions High Court can suo motu call for record of a subordinate court and examine the legality of order. Thus, the rights conferred under the C.P.Code are unfettered rights and the object is to do substantial justice. The rights can be exercised either suo motu or on being brought to the notice by any party or agency to prevent miscarriage of justice. Any party or agency bringing such illegal orders to the notice of court is merely an instrumentality calling upon the court to exercise suo motu powers for preventing miscarriage of justice. Therefore, in my view, under Section 115 of the C.P.Code prior leave of court is not required when the revision is filed by a person who is present before trial but and yet may not be party. 11. Mr.Shah has also argued that the impugned order is an ad-interim order and instead of going before the court the petitioner should and could have approached the court for hearing on merits. It is true that the alternative recourse for approaching the trial court and hearing the matter is available to the petitioner, but if the impugned order is ad-interim in nature and surfaces from illegality or is patently erroneous and without jurisdiction, there is no bar in invoking revisional jurisdiction under Section 115 of the C.P.Code. 12. The impugned order is passed below Ehx. 54 and the suit is pending. After passing the impugned order, some more developments have taken place in the pending suit, namely, application Exh.67 given by petitioners for joining as parties to the litigation. Thereafter, vide Exh.69 the petitioners had prayed for vacating the interim order and hearing of said application is pending. Vide application Exh.93 dated 21.2.1997, the petitioners third parties also applied for counter-injunction against plaintiffs. It is true that the petition is silent about these developments. But nonetheless they can be said to be guilty of suppression of material facts. By preferring this petition legality of order passed below Exh.54 has been challenged. The day on which the impugned order is passed, all these documents were not in existence and available for consideration by the court. It is true that the day on which the present petition is filed said documents were in existence and were within the knowledge of the petitioners. But non-disclosure cannot be treated as suppression of material and relevant facts which would otherwise affect the legality and validity of the impugned order. According to law, all the material and relevant facts prevailing on the date of passing an order are required to be disclosed before the court so that by considering all relevant and material circumstances the court can pass appropriate order so that it may not result into miscarriage of justice. 13. The contention that the object of filing this petition is to invite some observations from the highest court of the State to influence the trial court while deciding subsequent suit No.108 of 1996 pending in the court of Civil Judge (S.D.) Godhra. I find no merit in this contention for the simple reason that a party has unfettered right under law to challenge any of the orders if it suffers from illegality or patent error and adversely affecting his rights and interests irrespective or pendency of any other matter. Other matter has to be decided on the facts and merits. 14. Thus, on overall consideration, the impugned order is illegal, patently erroneous and without jurisdiction and does not call for recognition. In the result, the petition requires acceptance and the impugned order passed below Annexure-J dated 15.2.1997 (Exh.54) in Regular Civil suit No.158 of 1996 is hereby quashed and set aside. Rule discharged. Interim / arrangement, if any, stands vacated. 15. Before I part with, I would also like to bring on record some developments which had taken place during pendency of this petition. During the course of arguments and while going through the material placed on record, it transpired that sale of respective parcels of land out of final plot No.109 of T.P.Scheme No.1 in favour of the petitioners as well as in favour of respondents Nos.1 to 4 is not in dispute (without prejudice to the rival contentions in Special Civil Application No.108 of 1996 pending in the Court of the Civil Judge (S.D.) Godhra). The dispute seemed to be about identification of respective property and the dimensions within the four boundaries of final plot No.109 of T.P.Scheme No.1. With a view to resolve this dispute an officer from the office of the District Inspector and Land Records, Ahmedabad was appointed as Commissioner with the consent of parties to visit the site, make survey, take measurement and demarcate the boundaries of their respective holding. Accordingly, the Commissioner had visited and had completed commission work in presence of the petitioners and respondents Nos.1 to 4 and/or their respective representatives. The report and sketch is placed on record. Accordingly, the property owned by respondents Nos.1 to 4 is shown as plot No.109-A and the property owned by the petitioners is shown as plot No.109-B. The demarcation measurements and total area described in the respective sale deeds tally with the measurements shown in the report and sketch. Ostensibly with this report and sketch there shall not be any dispute between the parties, however Mr.Shah for respondents Nos.1 to 4 has objected about the correctness of the site and direction shown in the sketch. According to the sketch, the plot owned by respondents Nos.1 to 4 is shown on the western side and adjacent to final plot No.5, whereas rest of the part of final plot No.109 is shown as of the ownership of petitioners. But Mr. Shah contends that, as per the sale deed, the plot of respondents Nos.1 to 4 should be on eastern side of the final plot No.109 and adjacent to plot No.6. By appointing Commissioner the intention of the court was to bring an end to the entire litigation, however, despite being no dispute about the total measurement and dimensions, the dispute is raised about the site and direction. Therefore, without giving any finding, the issue is kept open. The parties would be at liberty to agitate this issue before appropriate forum placing reliance upon the report and sketch. 16. Mr.Shah for respondents Nos.1 to 4 requests for stay of operation of this order. As a cardinal rule, every aggrieved party enjoys unfettered right to approach superior forum for challenging validity of order. As respondents Nos.1 to 4 intend to challenge, I find no hesitation in accepting their request and staying operation of the impugned order. Accordingly, operation of the order is stayed till 20.6.1997. While staying operation of this order, it is clarified that both the parties shall maintain status qua possession of the land in their respective possession as shown in the Commissioner's Report and that shall not make any construction thereon till then.