SCA/13394/2006 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13394 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 ? ========================================================= HEIRS OF KABHAIBHAI JERABHAI TALPADA & 1 - Petitioner(s) Versus HIMANSHU JIBHAUBHAI KAPADIA & 1 - Respondent(s) ========================================================= Appearance : MR HARSHADRAY A DAVE for Petitioner(s) : 1 - 2.MR HARDIK A DAVE for Petitioner(s) : 1 - 2. MR RS SANJANWALA for Respondent(s) : 1, None for Respondent(s) : 2, BALKRISHNA ACHARYA for Respondent(s) : 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/12/2008 ORAL JUDGMENT 1. Leave to amend. Wherever the word “hypothecation” is used in the petition, it should be read as “mortgage”. 2. Rule. Mr.Balkrishna, learned advocate waives the service SCA/13394/2006 2/3 JUDGMENT of notice of rule on behalf of the respondent Nos. 2/a to 2/f. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs have prayed for appropriate writ, order and/or directions quashing and setting aside the order dtd.12/5/2006 passed by the learned 9th Additional Senior Civil Judge, Nadiad below application Ex.57 in Civil Suit No. 133 of 2001, by which the learned trial court has allowed the application submitted by the respondent Nos.2/a to 2/f (third party) by directing the petitioners herein – original plaintiffs to join them as plaintiff Nos.3 to 8. 4. Mr.Harshadray, learned advocate appearing on behalf of the petitioners – plaintiffs has submitted that the learned trial court has committed an error in directing the petitioners to join the third parties as plaintiff Nos.3 to 8 in the suit filed by them, more particularly when they are disputing the status. It is submitted that at the most those third party could have been joined as defendants in the suit. 5. Mr.Balkrishna Acharya, learned advocate appearing on behalf of the third party – respondent Nos.2/a to 2/f has submitted that he has no objection if the impugned order passed by the learned trial court is modified to the extent that instead of the plaintiff Nos.3 to 8, the third parties to be joined as defendants. 6. Considering the above and when the plaintiffs are disputing the status of the third party and in view of the concession given by the learned advocate appearing on behalf of the third parties, the impugned order passed by the learned trial court below application Ex.57 in Civil SCA/13394/2006 3/3 JUDGMENT Suit No. 133 of 2001 is modified to the extent that the third parties – respondent Nos.2/a to 2/f herein are directed to be joined as defendant Nos.3 to 7, without prejudice to the rights and contentions of the respective parties. Rule is made absolute accordingly. No In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik