LPA/116/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 116 of 2008 In SPECIAL CIVIL APPLICATION No. 30969 of 2007 With CIVIL APPLICATION No. 1188 of 2008 In LETTERS PATENT APPEAL No. 116 of 2008 In SPECIAL CIVIL APPLICATION No. 30969 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= KISHOREBHAI ZAVERCHAND MALDE & 1 - Appellant(s) Versus PREMCHANDBHAI VIRPAR CHANDRIYA & 2 - Respondent(s) ========================================================= Appearance : MR BB NAIK for Appellant(s) : 1 - 2. MR SM SHAH WITH MR PREMAL R JOSHI for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/116/2008 2/5 JUDGMENT Date : 13/03/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal, preferred under Clause 15 of the Letters Patent, arises from the order of the learned Single Judge dated 28th January, 2008 made in above Special Civil Application No.30969 of 2007. The appellants, writ petitioners are the transferees of the suit property from the defendant No.2 pendente lite. The application Exh.36 made by the appellants for joining as party in Special Civil Suit No.189 of 2000 pending before the learned Senior Civil Judge, Jamnagar has been rejected on 10th December, 2007. The learned Civil Judge was of the opinion that the appellants had purchased the suit property pending the suit without seeking permission of the Court as envisaged by Section 52 of the Transfer of Property Act. The principle of lis pendens would apply. The challenge to the said order in Special Civil Application No.30969 of 2007 has failed. The learned Single Judge has rejected the petition mainly on the grounds that the plaintiff is the dominus litis; and that the appellants being the LPA/116/2008 3/5 JUDGMENT transferees pendente lite, they are neither necessary nor proper parties to the suit. Before us, learned advocate Mr. Naik has appeared for the appellants. He has submitted that in view of the curtailment of jurisdiction under Section 115 CPC, a petition under Articles 226 and 227 would lie before this Court. The appellants had invoked the original jurisdiction of the high court to issue a writ of certiorari. The petition was one essentially under article 226 of the Constitution of India. The present Appeal under Clause 15 of the Letters Patent is maintainable. In support thereof, he has relied upon the judgments of the Hon'ble Supreme Court in matters of Kishorilal v. Sales Officer, District Land Development Bank & Others [(2006) 7 SCC 496], Surya Devi Rai v. Ram Chandra Rai & Ors. [(2003) 6 SCC 675] and Salem Advocate Bar Association, T.N. v. Union of India [(2005) 6 SCC 344]. As to the right of the appellants to be impleaded in the pending suit, he has relied upon the judgments of the Hon'ble Supreme Court in the matters of D.B.Zubeda Khatool v. Nabi Hassan Saheb [AIR 2004 SC 173], Amit Kumar Shaw & LPA/116/2008 4/5 JUDGMENT Another v. Farida Khatoon & Another [2005 (11) SCC 403], Sumtibai & Ors. v. Paras Finance Co. Regd. Partnership Firm [AIR 2007 SC 3166] and Sunil Gupta v. Kiran Girhotra & Ors. [(2007) 8 SCC 506]. The Appeal is contested by Mr. Shah. He has supported the judgment of the learned Single Judge. He has submitted that the petition was essentially one under Article 227 of the Constitution of India. The present Appeal under Clause 15 of the Letters Patent is not maintainable. As to the right of the appellants to be impleaded in the pending suit, Mr. Shah has submitted that the plaintiff is dominus litis. The appellants, being transferees of the suit property pending the suit without notice to the Court, have no right to be impleaded in the pending suit. In support thereof, he has relied upon the judgment in the matter of Kasturi v. Iyyamperumal & Other [AIR 2005 SC 2813]. It is not in dispute that the appellants are the transferees of the suit property from the defendant pendente lite. We are of the opinion that the LPA/116/2008 5/5 JUDGMENT principle of lis pendens shall apply. The learned Single Judge has considered the matter extensively. We are unable to hold that the learned Single Judge has committed error, which calls for interference by this Court. No case for interference is made out. The Appeal is dismissed in limine. Civil Application No.1188 of 2008 stands disposed of. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc