SCA/24464/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24464 of 2006 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? ========================================================= PARBHUBHAI MAKANBHAI PATEL - Petitioner(s) Versus DAVIBEN. WD/O,SHIVABHAI MORARBHAI & 8 - Respondent(s) ========================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 9. - for Respondent(s) : 8 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/12/2008 ORAL JUDGMENT 1. Rule. Mr.A.J.Desai, learned Advocate waives service of Rule on behalf of respondent Nos.8 and 9. With the consent of the learned Advocates for the respective parties, the petition is taken up for final hearing today. SCA/24464/2006 2/7 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for an appropriate Writ, direction and/or order quashing and setting aside the impugned order dated 17.10.2006 passed by the learned Principal Civil Judge, Olpad below Exh.45 in Regular Civil Suit No.9 of 2005 by which the learned Judge has allowed the said application Exh.45 submitted by respondent Nos.8 and 9 herein permitting them to be joined as defendant Nos.8 and 9 in the aforesaid Regular Civil Suit No.9 of 2005. 2. The petitioner herein – original plaintiff had instituted Regular Civil Suit No.9 of 2005 in the Court of learned Principal Civil Judge, Olpad for cancelling sale deed executed by defendant No.1 in favour of defendant No.7 dated 18.12.2004. It is the case on behalf of the petitioner – plaintiff that land revenue survey No.346/1/2 bearing new block No.713 of Village – Sondlakhara, Tal-Olpad, Dist- Surat, was originally owned by Shivabhai Morabhai and Muljibhai Dayalbhai. Out of them Shivabhai expired on 20.07.1974 and pursuant thereto, vide Mutation Entry No.2534 dated 20.10.1974 name of Deviben widow of Shivabhai was mutated in the revenue record on the basis of consent reply of the sons and daughters of the deceased Shivabhai Morarbhai. Thus after death of Shivabhai in 1974 only Deviben become owner of share of Shivabhai. That thereafter other co-owner Muljibhai Dahyabhai also expired and as heir of Muljibhai name of Jivanbhai Muljibhai – defendant SCA/24464/2006 3/7 JUDGMENT No.2 was mutated in the revenue record. It is the case on behalf of the petitioner that said land was agreed to be sold to the petitioner and thereafter registered sale deed was executed by defendant Nos.1 to 3 in favour of the petitioner-plaintiff which is registered at Sr.No.1343 dated 18.07.2002. Thus, as per the petitioner, he become owner and in possession of the said land. That thereafter, the petitioner – plaintiff learnt that after executing the sale deed in petitioner's favour, the defendant No.1 had executed one more sale deed in favour of the defendant No.7 on 18.12.2004 and therefore, he preferred Regular Civil Suit No.9 of 2005 for cancellation of said sale deed executed by defendant No.1 in favour of defendant No.7. That in the said suit, respondent Nos.8 and 9 herein third party being sons of respondent No.1 – Deviben preferred application Exh.45 for joining as party defendant Nos.8 and 9 in Regular Civil Suit No.9 of 2005 on the ground that they have got right in the suit property being heirs of Shivabhai. The said application was resisted by the petitioner – plaintiff on the ground that in the aforesaid suit 3rd party cannot be said to be necessary party for adjudication of the aforesaid suit. It was also submitted that as such said application is nothing but afterthought as even in the sale deed executed in favour of the petitioner- plaintiff, respondent No.8 had signed as witness and/or confirming party inspite of above, the learned trial Court by impugned order dated 17.10.2006 allowed the said application Exh.45 permitting SCA/24464/2006 4/7 JUDGMENT respondent Nos.8 and 9 to be joined as defendant Nos.8 and 9 in Regular Civil Suit No.9 of 2005. Being aggrieved and dissatisfied with the impugned order dated 17.10.2006 passed by the learned Principal Civil Judge, Olpad below Exh.45 in Regular Civil Suit No.9 of 2005, the petitioner-plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Amit Thakkar, learned Advocate for the petitioner – plaintiff has vehemently submitted that the learned trial Court has materially erred in allowing application Exh.45 and permitting respondent Nos.8 and 9 to be joined as defendant Nos.8 and 9 in the Regular Civil Suit No.9 of 2005. It is submitted that in the Suit filed by the petitioner- plaintiff for cancellation of sale deed executed by defendant Nos.1 in favour of defendant No.7, respondent Nos.8 and 9 cannot be said to be necessary and proper party. It is submitted that by permitting respondent Nos.8 and 9 to be joined as party defendants in the suit, nature of suit would be changed and said suit would be converted under suit for title between the petitioner – plaintiff and respondent Nos.8 and 9 as defendant Nos.8 and 9- third parties are claiming their right as heirs of deceased Shivabhai. It is submitted that as such substantive suit is already filed by respondent Nos.8 and 9 being Civil Suit No.23 of 2007 in the Court of learned Principal Civil Judge, Surat for claiming their right as heirs of deceased Shivabhai. Therefore, if respondent Nos.8 SCA/24464/2006 5/7 JUDGMENT and 9 are permitted to be joined as defendants in the present suit as heirs of deceased Shivabhai, same would directly affect Civil Suit No.23 of 2007 filed by respondent Nos.8 and 9. Therefore, it is requested to allow present Special Civil Application. 4. The petition is opposed by Mr.A.J.Desai, learned Advocate for respondent Nos.8 and 9. It is submitted that in the facts and circumstances of the case when respondent Nos.8 and 9 are claiming their right in the disputed property as heirs of deceased Shivabhai, respondent Nos.8 and 9 can be said to be necessary and proper party for proper adjudication of aforesaid Civil Suit. Therefore, the learned trial Court has rightly allowed application Exh.45 permitting respondent Nos.8 and 9 herein to be joined as defendant Nos.8 and 9 in the aforesaid Suit. It is submitted that learned trial Court has passed impugned order considering Order I Rule 10 of the Code of Civil Procedure and exercised discretion judicially and same does not require to be interfered by this Court under Article 227 of Constitution of India. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. At the outset, it is required to be noted that the petitioner – plaintiff had instituted Regular Civil Suit No.9 of 2005 for cancellation of sale deed executed by defendant No.1 in favour of SCA/24464/2006 6/7 JUDGMENT defendant No.7, which is executed after registered sale deed in favour of petitioner – plaintiff. In the said suit, respondent Nos.8 and 9 – third party submitted application Exh.45 for permitting them to be joined as party defendant Nos.8 and 9 as heirs of deceased Shivabhai claiming them that they have got right in the said property. As stated above in the aforesaid suit rights of defendants more particularly defendant Nos.8 and 9 are not in issue. For the aforesaid relief in the suit, respondent Nos.8 and 9 cannot be said to be necessary and/or proper party in whose absence effective reliefs cannot be granted by the learned trial Court in the aforesaid suit. Under the circumstances, it appears that the learned trial Court has committed error in allowing application Exh.45. The learned trial Court ought to have appreciated that by permitting respondent Nos.8 and 9 to be joined as defendant Nos.8 and 9 in the aforesaid suit, even nature of suit is likely to be changed. Under the circumstances, learned trial Court has materially erred in allowing application Exh.45 permitting respondent Nos.8 and 9 to be joined as defendant Nos.8 and 9 in the aforesaid Civil Suit in exercise of powers under Order I Rule 10 of the Code of Civil Procedure which cannot be sustained and which deserves to be quashed and set aside. It is also required to be noted at this stage that even respondent Nos.8 and 9 have already initiated substantive suit being Civil Suit No.23 of 2007 in the Court of learned Principal Civil Judge, Surat for establishing their rights. SCA/24464/2006 7/7 JUDGMENT 7. For the reasons stated above, the petition succeeds. Impugned order dated 17.10.2006 passed by the learned Principal Civil Judge, Olpad below Exh.45 in Regular Civil Suit No.9 of 2005 is hereby quashed and set aside. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R.Shah,J.] satish