SCA/3370/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3370 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= JAWAHAR KANTILAL VAKHARIA - Petitioner(s) Versus EMBEE TEXTILES & 2 - Respondent(s) ========================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1 - 2. MR GOVIND V PATEL for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2, NOTICE UNSERVED for Respondent(s) : 2, MS NALINI S LODHA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/08/2008 ORAL JUDGMENT 1. Rule. Mr.Govind Patel, learned Advocate waives service of Rule on behalf of respondent No.1. SCA/3370/2008 2/11 JUDGMENT Ms.Nalini Lodha, learned Advocate waives service of Rule on behalf of respondent No.3. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original third party newly added defendant No.3 has prayed for an appropriate Writ, direction and /or order quashing and setting aside the order dated 24.10.2005 below Exh.28 and order dated 31.12.2007 below Exh.55 passed by the learned trail Court in Summary Suit No.258 of 2003 by which the petitioner is ordered to be joined as defendant No.3 in the aforesaid Summary Suit No. 258 of 2003 without giving any opportunity and hearing to the petitioner. 3. Summary Suit came to be filed by respondent No.1 before the Small Causes Court, Ahmedabad against respondent Nos.2 and 3 herein – original defendant No.s 1 and 2 being Summary Suit No.258 of 2003 (old number 3199 of 1995) for recovery of amount due and payable by partnership firm – M/s.K.J.Vakharia and SCA/3370/2008 3/11 JUDGMENT Company – original defendant No.1. It appears that in the said application original defendant No.2 – respondent No.3 herein partner of partnership firm – M/s.K.J.Vakharia and Company submitted application on 14.10.2005 below Exh.28 to join the petitioner as defendant in the said suit by submitting that he has retired as partner of M/s.K.J.Vakharia and the petitioner is carrying on business of said partnership firm since long and therefore, there is bar of mis-joinder of parties and non-joinder of proper parties. That the Small Causes Court on the same day without even issuing notice upon the petitioner who was sought to be joined as party defendant in the said suit and thereby without giving any opportunity of hearing to him and giving any opportunity to the petitioner to submit objections against his joining as party defendant in the said suit, allowed the application Exh.28 and passed order allowing the petitioner to be joined as defendant No.3. That thereafter it appears that no steps were taken by original plaintiffs to amend the suit by joining the petitioner as defendant No.3 in the said Suit till December, 2006 and thereafter, the SCA/3370/2008 4/11 JUDGMENT petitioner was joined as defendant No.3. Summons was issued upon the petitioner on 30.12.2006 which was received by the petitioner on 05.01.2007. The petitioner appeared before the learned trial Court on 11.01.2007 and submitted application for adjournment by submitting that he wants to challenge the said order before the higher forum and also for filing leave to defend application. That thereafter, after three to four times adjournment applications were submitted and thereafter, the petitioner submitted application Exh.55 to review and/or recall the order passed dated 24.10.2005 below Exh.28 and consequently to delete defendant No.3 as party in the said Suit. The learned trial Court by impugned order dated 31.12.2007 dismissed the said application by observing that the learned Small Causes Court, Ahmedabad has no jurisdiction and/or authority to review its own order. Being aggrieved and dissatisfied with both the orders passed below Exh.28 and Exh.55, the petitioner – third party defendant No.3 has preferred the present Special Civil Application under Article 227 of the Constitution of India. SCA/3370/2008 5/11 JUDGMENT 4. Mr.Amit Thakkar, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the order passed by the learned Small Causes Court below Exh.28 permitting to join petitioner as defendant No.3 in Summary Suit is illegal and against principles of natural justice. It is submitted that before joining the petitioner as defendant No.3, the learned trial Court ought to have issued notice upon the petitioner and ought to have given opportunity to submit his objections, if any and thereafter passed the order. It is submitted that in the Suit of 1994, the petitioner was sought to be joined as defendant No.3 in the year 2005 and therefore, the petitioner could have contended that the suit against the petitioner would be time barred and therefore, the petitioner could not have been joined as defendant in the Suit. It is submitted that considering above, when the petitioner submitted application before the learned trial Court to review and / or recall the said order, the learned trial Court ought to have even exercised powers under Section 151 of the C.P.C. and ought to have recalled or reviewed the said order passed below Exh.28. Therefore, it is requested to SCA/3370/2008 6/11 JUDGMENT allow the present Special Civil Application by quashing and setting aside the order passed below Exh.28 and Exh.55. 5. The petition is opposed by Ms.Nalini Lodha, learned Advocate appearing on behalf of respondent No.3 herein – defendant No.2. It is submitted that as it was pointed out that business of the partnership firm has been further carried by the petitioner and he was necessary and proper party, application was submitted, therefore, the learned trial Court has rightly granted the application Exh.28 by joining the petitioner as defendant No.3 in the Suit as partner of defendant No.1. She has relied upon Order I Rule 8 of the Code of Civil Procedure which permits the Court even to join any party to the Suit. It is also further submitted that even the petitioner – third party defendant No.3 has subsequently appeared before the learned trial Court and submitted number of applications for filing application for leave to defend and therefore, it can be said that the petitioner has participated in the proceedings and therefore, it is not open for the SCA/3370/2008 7/11 JUDGMENT petitioner now to challenge the order passed below Exh.28 by which he was ordered to be joined as defendant No.3 in the Suit. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. At the outset it is required to be noted that original Summary Suit has been filed by the plaintiff before the learned Small Causes Court, Ahmedabad against partnership firm – K.G.Vakharia and Company in the year 1995 and application below Exh.28 was submitted by the original defendant No.2 on 14.10.2005 to join the petitioner as party defendant No.3 in the said suit by submitting that he has already retired as partner of K.G.Vakharia and Company since long and business of said firm has been further carried by the petitioner. Said application came to be allowed by the learned trial Court on 24.10.2005 without even issuing notice upon the petitioner – third party and without issuing notice to show cause why the petitioner should not be joined SCA/3370/2008 8/11 JUDGMENT as defendant No.3 in the said Suit. It is cardinal principle of law that whenever a person / party is to be joined in the suit on the application being given by the party to the suit, first notice is to be issued to the proposed defendant – third party and is required to be given opportunity to show cause why he should not be joined as party defendant to the proceedings. There can be number of objections which can be submitted by the third party against his joining as defendant in the suit. He can very well say that if he is joined as defendant to the suit, it would be barred by limitation. 8. In the present case, as stated herein above, without even issuing any notice upon the petitioner – third party who was sought to be joined as defendant No.3 in the year 2005 in a suit of 1995, the application has been submitted at the instance of defendant No.2 and the petitioner – third party is ordered to be joined as defendant No.3 in the suit. It appears that there are serious dispute between defendant No.2 and defendant No.3 which are going on before other Courts. Under the circumstances, SCA/3370/2008 9/11 JUDGMENT impugned order passed by the learned Small Causes Court, Ahmedabad below Exh.28 dated 24.10.2005 ordering the petitioner -third party to be joined as defendant No.3 requires to be quashed and set aside on the very ground. 9. Now so far as the submission and contention on behalf of respondent No.3 – defendant No.2 that application for adjournments were given by the petitioner to file application for leave to defend and therefore, the petitioner can be said to have participated in the proceedings after he was joined as defendant No.3, and therefore, it is not open for the petitioner now to challenge the order of joining him as defendant No.3 to the Suit, this Court has called for Record and Proceedings from the learned trial Court and on considering applications for adjournments, it is very clear that it is specifically mentioned by the petitioner in the said applications that he wants to challenge the order joining him as party defendant No.3 before the higher forum and simultaneously the petitioner also sought time to submit application for leave to defend. SCA/3370/2008 10/11 JUDGMENT Considering above, it cannot be said that the petitioner is now estopped from challenging the order below Exh.28. 10. For the reasons stated above, impugned order passed below Exh.28 requires to be quashed and set aside and the matter is to be remanded to the learned Small Causes Court for deciding the application Exh.28 afresh in accordance with law and on merits after giving opportunity to the petitioner after issuing notice upon the petitioner. 11. Under the circumstances, impugned order dated 24.10.2005 passed below Exh.28 in Summary Suit No.258 of 2003 is hereby quashed and set aside. The matter is remanded to the learned trial Court for deciding the application Exh.28 afresh in accordance with law and on merits after giving opportunity to the petitioner and after issuing notice upon the petitioner. Rule is made absolute accordingly. However, there shall be no order as to costs. Registry to return the Record and Proceedings to the trial Court immediately. SCA/3370/2008 11/11 JUDGMENT [M.R.Shah,J.] satish