SCA/10751/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10751 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= SHAH MADANLAL RATILAL & 3 - Petitioners Versus DISTRICT PANCHAYAT & 4 - Respondents ========================================================= Appearance : MR UA TRIVEDI for Petitioners. MR HS MUNSHAW for Respondent(s) : 1 - 2, 4, None for Respondent No.3 MR PK JANI for Respondent 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. Heard Shri U.A.Trivedi, learned advocate appearing on behalf of the petitioners and Shri P.K.Jani, learned advocate appearing on behalf of respondent No.5 – the main contesting respondent. SCA/10751/2008 2/4 JUDGMENT With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original plaintiffs have prayed for an appropriate writ, order or direction, quashing and setting aside the order passed below Exh.21 dated 14.8.2008 passed in Regular Civil Suit No.46 of 2008 by the learned 2nd Additional Civil Judge, Dhanera. 3. While issuing the notice for final disposal, this Court passed the following order: “It is the contention on behalf of the petitioners that impugned order has been passed by the learned trial Court and third party is joined as defendant in the Suit filed by them without hearing them and thereby without considering their objections whether third party who is ordered to be joined as defendant is necessary and/or proper party for proper adjudication of the Suit or not? Hence, Notice for final disposal, i.e. to remand the matter to the learned trial Court for deciding the said application afresh after hearing the petitioner, making it returnable on 02nd September, 2008. To be placed in First Board. Direct service is permitted, today. SCA/10751/2008 3/4 JUDGMENT In the meantime, impugned order passed by the learned trial Court which is stayed upto 29th August, 2008, is stayed.” 4. Shri P.K.Jani, learned advocate appearing on behalf of respondent No.5 – main contesting party is not in a position to dispute what is stated hereinabove. Thus, it is an undisputed position that the impugned order has been passed by the trial court and third party is joined as defendant in the suit filed by the petitioners-plaintiffs without hearing them and thereby without considering their objections whether the said third party who is ordered to be joined as defendant is necessary and proper party for proper adjudication of the suit or not. Under the circumstances, the impugned order cannot be sustained and requires to be quashed and set aside. 5. For the reasons stated above, the impugned order passed by the learned 2nd Additional Civil Judge, Dhanera dated 14.8.2008 passed below Exh.21 passed in Regular Civil Suit No.46 of 2008 is hereby quashed and set aside and the matter is remanded to the learned trial court for deciding the application Exh.21 afresh and in accordance with law and on merits at the earliest, after giving an opportunity to all concerned inclusive of petitioners-original plaintiffs. It is made clear that this Court has not expressed any opinion in favour of either parties and SCA/10751/2008 4/4 JUDGMENT the learned trial court to decide and dispose of the application Exh.21 in accordance with law and on merits without in any way being influenced by the present order. 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. ) syed/