IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 1103 of 2002 with CIVIL REVISION APPLICATION No 1104 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PATEL DINESHBHAI MOHANBHAI Versus DECD. NARANBHAI RAMDAS THRO' LEGAL HEIRS -------------------------------------------------------------- Appearance: 1. Civil Revision Application Nos. 1103 & 1104 of 2002 MR BS PATEL for Petitioner No. 1-3 MRS RANJAN B PATEL for Petitioner No. 1-3 .......... for Respondent No. 1 MR DHAVAL D VYAS for Respondent No. 1/1-1/5 RULE SERVED for Respondent No. 2-4 MR SHITAL R PATEL for Respondent No. 5 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 23/09/2004 & 24/09/2004 COMMON ORAL JUDGEMENT Since common point is involved in both these Civil Revision Applications, both are disposed of by this common judgement. So far as Civil Revision Application No.1103/2002 is concerned, the same is filed by the original plaintiffs of Special Civil Suit No.194/1988 challenging the order dated 20th September, 2002, passed below Exh.59 by the learned 4th Civil Judge (S.D.) Vadodara, by which the learned Judge has rejected the withdrawal pursis filed by the applicants of this Civil Revision Application. So far as Civil Revision Application No.1104/2002 is concerned, the same is filed by the original plaintiffs of aforesaid Special Civil Suit No.194/88, challenging the order of same date of the learned trial Judge passed below Exh.57, by which third party, i.e., opponents No.2 to 5 herein were permitted to be joined as co-plaintiffs in the said suit. The learned trial Judge has passed that order under Order 1 Rule 10 of C.P.C. Being aggrieved by the aforesaid orders, the original plaintiffs have filed these Revision Applications before this Court. The facts leading to the controversy are as under: The applicants herein instituted a suit being Special Civil Suit No.194/1988 before the Civil Judge (S.D.) at Vadodara. The said suit is filed against the opponents No.1/1 to 1/5 herein, for specific performance of agreement to sell in respect of the suit land admeasuring 1 Acre and 31 gunthas bearing Survey No.354/1, situated at Manjalpur area of city of Vadodara, which is subsequently given final plot No.347 in Town Planning Scheme No.19. The case of the original plaintiffs in the suit is that the defendants have executed a banakhat on 11-3-1986 in favour of the plaintiffs and the plaintiffs have paid Rs.1,54,251/- to the defendants as earnest money and subsequently further amount was also paid to the defendants towards the consideration. According to the plaintiffs, an amount of Rs.2,06,251/- is paid by the plaintiffs to the defendants and that final sale deed was to be executed by the defendants after finalization of the town planning scheme. Since the defendants failed to execute the document of sell, the plaintiffs have filed the aforesaid suit for specific performance of the suit agreement, dated 11-3-1986. The said suit was resisted by the defendants on various grounds by filing their written statement at Exh.13. During the pendency of the said suit, applicants (original plaintiffs) gave an application (pursis) at Exh.59, requesting the Court to allow them to withdraw the suit unconditionally. In the withdrawal pursis, an averment is made to the effect that the suit is filed by oversight and the plaintiffs were misguided by one broker and on inquiry, the plaintiffs came to know that the defendants have not executed any agreement to sell in favour of the plaintiffs and that agreement was also got registered by way of fraud. It is also stated in the pursis that the plaintiff subsequently came to know about the real facts and, therefore, they have shown willingness to withdraw the suit unconditionally. This application for withdrawal of the suit was given on 26-7-2002 at Exh.59. On that very day i.e. on 26-7-2002, the third party-respondents No.2 to 5 herein gave an application under Order 1 Rule 10 of C.P.C., at Exh.57, requesting the Court to permit them to be joined as party to the suit. In the said application, it is averred by the applicants (third party), who wanted to be joined as party in the aforesaid suit, that there is an agreement to sell executed by the original owners in favour of the plaintiffs, which is dated 11-5-1986. It is also averred in the said application that subsequently the plaintiffs have agreed to sell the land in question to the applicants (third party) on 14-9-1987 and accordingly, the plaintiffs have assigned their rights in favour of the applicants (third party) by executing a banakhat dated 14-9-1987. It is also the say of the applicants (third party) that they have also filed substantive civil suits for specific performance of the agreement to sell, against the plaintiffs and defendants of the present suit. Particulars of such suits are as under. i) Ashokbhai Jayantibhai Sheth (Opponent No.2 herein) has filed Special Civil Suit No.657/1988. ii) Jagdishbahi Chimanlal Parikh (Opponent No.3 herein) has filed Special Civil Suit No.658/1988. iii) Balkrishnan Madhusudan Patel (Opponent No.4 herein) has filed Special Civil Suit No.659/1988. iv) Gopalbhai Madhusudan Patel (Opponent No.5 herein) has filed Special Civil Suit No.660/1988. It is the case of the applicant (third party) that the plaintiffs and defendants have colluded with each other in order to defraud the applicants. It is also averred in the application that the plaintiffs may not remain present in the suit and the plaintiffs may try to see that the suit is dismissed for default. Under these circumstances, the applicants, who wanted to be joined as party in the aforesaid suit, gave an application Exh.57 requesting the Court to allow them to be joined as party in the aforesaid suit. The learned trial Judge has decided both the applications by a common order. The learned trial Judge came to the conclusion that the applicants (third party) have got enforceable legal right by virtue of agreement dated 14-9-1987, which is executed by the plaintiffs and therefore, they are necessary party or at least proper party, since they have got direct interest in the suit property. Accordingly, the trial Court permitted the applicants to be impleaded as co-plaintiffs in the said suit. So far as withdrawal pursis given by the original plaintiffs is concerned, the trial Court came to the conclusion that the said pursis for withdrawal of the suit is not bona fide and considering the averments made in the withdrawal application, it can be said that the plaintiffs are not stating truthful version and that the plaintiffs have committed fraud with the parties as well as with the Court. According to the learned trial Judge, wrong averments have been made in the said withdrawal pursis. The trial Court has also observed that the contents of the withdrawal pursis are not correct, as, the plaintiffs have said in the pursis that they are not knowing, who are the real owners of the suit land and that the real owners have not executed Banakhat dated 11-3-1986. The trial Court, therefore, found that the plaintiffs and the defendants have colluded with each other and if the plaintiffs are permitted to withdraw the suit, the third party applicants will be deprived of their rights. The trial Court has also found that if the pursis of withdrawal of the suit is accepted, then the plaintiffs may take advantage, by taking a stand that they have not executed Banakhat dated 14-9-1987 in favour of the applicants-third party, who wanted to be joined as party in the suit. Under these circumstances, the trial Court found that the presence of the third party is necessary for the purpose of effectively and finally deciding the rights of the parties. The trial Court has also found that presence of the third party is necessary so that their rights may not be adversely affected as an agreement to sell is in their favour, which is executed by the original plaintiffs. The trial Court, ultimately, rejected the withdrawal pursis of the original plaintiffs filed at Exh.59 and application of the third party at Exh.57 is allowed by the trial Court and the third party is permitted to be impleaded as co-plaintiffs in the aforesaid suit. The original plaintiffs have challenged both the aforesaid orders by filing two separate Civil Revision Applications before this Court. I have heard Mr.B.S.Patel, learned advocate appearing for the petitioners (original plaintiffs). I have also heard learned advocate Mr.D.D.Vyas along with Mr.Dhaval Vyas for respondents No.1/1 to 1/5, who are the original defendants in the aforesaid suit. I have also heard Mr.A.J.Patel with Mr.Shital Patel, learned advocate for opponents No.2 to 5, who are the applicants, who have been permitted to be joined as party to the suit by the trial Court. Learned advocate Mr.B.S.Patel as well as learned advocate Mr.Vyas both have very vehemently submitted that the trial Court has committed error of jurisdiction in not allowing the original plaintiffs to withdraw their suit unconditionally. It is submitted that the plaintiffs have got absolute right to withdraw the suit unconditionally and, therefore, the trial Court should not have rejected the application for withdrawal of the suit. It is submitted by the learned advocate Mr.Vyas, that the opponents No.2 to 5 have already filed separate Civil Suits for specific performance of the agreement to sell and therefore, their rights can be decided and adjudicated in their respective suits and they cannot be permitted to be impleaded as co-plaintiffs in the present suit against the wish of the original plaintiffs. It is submitted by him that if the third party is permitted to be impleaded as co-plaintiffs, virtually it amounts to substituting the original plaintiffs. It is also submitted that by virtue of the impugned order, the third party is permitted to be impleaded as co-plaintiffs, even though the original plaintiffs are not willing to continue the suit in question. It is also submitted that the rights of the third party cannot be decided in the present suit and the Court has no jurisdiction to refuse the withdrawal pursis, if the plaintiffs are willing to withdraw the suit unconditionally. It is also submitted by the learned advocate for the petitioners as well as by the learned advocate for the respondents Nos.1/1 to 1/5 that the trial Court has committed an apparent error in coming to the conclusion that by giving such pursis for withdrawal of the suit, the plaintiffs have committed fraud with the Court as well as with the third party-applicants. It is submitted that even if it presumed that the plaintiffs have settled their dispute with the defendants, and if the plaintiffs wanted to withdraw the suit unconditionally, then also it cannot be said that the plaintiffs have committed fraud with the Court. It is further submitted that without any basis, the trial Court came to the conclusion that the action of the plaintiffs amounts to fraud with the Court. Mr.B.S.Patel has further submitted that the plaintiffs are not relying upon the averments made in the pursis for withdrawal of the suit and said pursis may be treated as simple pursis for unconditional withdrawal of the suit. Mr.B.S.Patel, learned advocate for the petitioners has cited numerous judgements to substantiate his say that the plaintiffs have got absolute right to withdraw the suit unconditionally. It is submitted that the order of the trial Court suffers from jurisdictional error, by which the plaintiffs are not allowed to withdraw the suit unconditionally and such order is required to be set aside by this Court. It is also vehemently contended that even though the suit in question is pending before the trial Court since more than a decade, third party gave an application under Order 1 Rule 10 of C.P.C., as late as on 21-7-2002. Mr.Vyas, learned advocate submitted that at the time when the defendants of the suit executed an agreement to sell in favour of the plaintiffs, the town planning scheme was not finalized and it is finalized subsequently. He submitted that if the third party is permitted to be joined in the suit, the cause of action will be totally changed and question of limitation will also arise, as the agreement to sell executed in favour of the applicants-third party is dated 14-9-1987 and they have been permitted to be joined as co-plaintiffs by order dated 26-7-2002. Mr.Vyas has also submitted that if the applicants are not permitted to be joined as co-plaintiffs in the suit, no prejudice is likely to cause to them, since they have already filed substantive suits, which are pending and the rights of the applicants can be decided and adjudicated in the aforesaid suits, especially when the plaintiffs and the defendants of the present suit are party to those suits. On behalf of opponents No.2 to 5, Mr.A.J.Patel as well as Mr.Shital Patel, learned advocates have vehemently submitted that the orders in question are not revisable under Section 115 of C.P.C. It is submitted by Mr.A.J.Patel that the order allowing third party to be joined as co-plaintiffs in the suit, is interlocutory in nature and in view of the amendment in Section 115 of C.P.C., revision against such order is not maintainable as it would not dispose of the entire suit. He submitted that so far as Civil Revision Application No.1103/2004 is concerned, the same is not maintainable in view of the amendment in Section 115 of C.P.C., as it is filed against an interlocutory order passed by the trial Court below Exh.57 by which the trial Court has permitted the third party to be impleaded as party to the suit. Mr.A.J.Patel, however, submitted that so far as Civil Revision Application challenging the order passed below Exh.59 is concerned, the same would be maintainable as, ultimately, by the impugned order the plaintiffs are not permitted to withdraw their suit unconditionally and if that application was allowed, the entire suit can be said to have been terminated. Mr.A.J.Patel further submitted that the original plaintiffs have assigned their rights in favour of the applicants, as subsequently an agreement to sell is executed by the plaintiffs in favour of the applicants and, therefore, the applicants have a right to continue the said suit even if the original plaintiffs wants to withdraw the suit. Mr.A.J.Patel further submitted that the original plaintiffs have tried to defraud the applicants, as after executing the document of agreement to sell in their favour, ultimately, the plaintiffs have tried to settle their dispute with the original land owner. Mr.A.J.Patel further submitted that it is true that the applicants have also filed separate suits in connection with the said agreement to sell executed by the original plaintiffs, but if the original plaintiffs are permitted to withdraw the suit in question, certain admissions made by the original plaintiffs, which may help the applicants-third party, will also go away. He also submitted that if the averments made in the pursis for withdrawal are accepted by the Court, it may affect the applicants' case, so far as suits filed by the applicants are concerned. Mr.A.J.Patel further submitted that in view of the agreement executed in favour of the applicants, they have right to be joined as co-plaintiffs in the suit in question. He further submitted that revision being a discretionary remedy, this Court is not bound to interfere with the aforesaid order of the trial Court, especially when substantial justice is done by the impugned order. Mr.A.J.Patel also very vehemently submitted that in view of the agreement to sell executed in favour of the applicants by the original plaintiffs, the applicants are entitled to proceed with the aforesaid suit, and they should be permitted to continue the said suit. It is also submitted by him that even if the original plaintiffs are not willing to continue the suit, the applicants can subsequently request the Court to transpose the original plaintiffs as defendants. Mr.A.J.Patel has also submitted that looking to the conduct of the original plaintiffs and defendants, the order of the trial Court, by which substantial justice is done to the applicants, is not required to be interfered with by this Court in a revision under Section 115 of C.P.C. Mr.A.J.Patel has also relied upon certain documentary evidence in order to substantiate his say in connection with the merits of the issue. He has also relied upon the agreement to sell executed by the original plaintiffs in favour of the applicants. Mr.A.J.Patel, has also cited various judgements to substantiate his say that the trial Court was justified in allowing the applicants to be joined as co-plaintiffs in the suit, under the provisions of Order 1 Rule 10 of C.P.C. Mr.A.J.Patel, therefore, submitted that both these revision applications are required to be dismissed and the applicants should be permitted to continue the suit by permitting them to be impleaded as co-plaintiffs in the said suit. Mr.A.J.Patel has also further submitted that it cannot be said that the trial Court has committed any jurisdictional error or it cannot be said that the trial Court has exercised it jurisdiction illegally or with material irregularity. I have heard learned advocates at great length. I have also gone through the documentary evidence on record. Since Mr.A.J.Patel has raised preliminary objection about the maintainability of the revision application, the said question is required to be dealt with first. Mr.A.J.Patel, learned advocate for opponents No.2 to 5 has vehemently submitted that since by the impugned order, the third party applicant is permitted to be impleaded as co-plaintiffs, such order is interlocutory in nature and in view of amendment in Section 115 of C.P.C., revision application against such an interlocutory order is not maintainable. In this connection, it is required to be noted that the applicants i.e., respondents No.2 to 5 herein gave an application Exh.57, with a request that they may be permitted to be joined as co-plaintiffs on the same day, i.e., on the date on which Exh.59 application was given by the original plaintiffs of the suit, requesting the Court to permit them to withdraw the suit unconditionally. The learned trial Judge has disposed of both the applications by common order. The learned trial Judge has firstly dealt with the withdrawal pursis submitted at Exh.59 by the original plaintiffs. The trial Judge has rejected the application Exh.59 and plaintiffs were not permitted to withdraw their suit. Subsequently, the trail Judge has allowed the application at Exh.57 submitted by the third party and the third party was permitted to be impleaded as co-plaintiffs in the suit. So far as withdrawal application Exh.59 is concerned, if that application is allowed, it would result into final disposal of the suit. The petitioner-original plaintiffs have challenged the order below Exh.59 by which original plaintiffs are not permitted to withdraw the suit unconditionally. If ultimately the original plaintiffs are permitted to withdraw the suit by allowing said application at Exh.59, naturally, its effect would be that the entire suit would be terminated. Mr.A.J.Patel has fairly submitted that so far as order below Exh.59 is concerned, the same is revisable under the provisions of Section 115 of C.P.C., as if that application is allowed, then it will dispose of the suit as a whole. He submitted that however, revision application filed against the order below Exh.57, by which the trial Court has permitted the third party to be joined as party to the suit, as such order is interlocutory in nature, revision against such order is not maintainable. In my view, there is hardly any substance in the aforesaid preliminary contention raised by Mr.A.J.Patel. Considering the nature of the aforesaid two applications, both the applications cannot be considered separately, as ultimately, if the original plaintiffs are permitted to withdraw the suit by allowing application Exh.59, naturally, there is no question of considering application of third party filed at Exh.57, as the entire suit would come to an end. Even the trial Court has decided both the applications together and disposed of by common order and the trial Court has first decided application at Exh.59 by which the trial Court has rejected the prayer of the original plaintiffs to withdraw the suit unconditionally and subsequently, consequential order is passed below Exh.57, by which the third party is permitted to be impleaded as party. However, if Exh.59 is allowed, naturally, no suit would remain on file and in that case, there is no question of permitting the third party to be impleaded as co-plaintiffs in the suit. As a matter of fact, if application Exh.59 is allowed, Exh.57 application will automatically become infructuous, as there is no question of permitting the third party to be impleaded as party to the suit. Considering the aforesaid aspect of the matter as well as considering the fact that if the plaintiff is permitted to withdraw the suit, the whole suit will be disposed of finally, such order would be revisable order under the amended provision of C.P.C. So far as application Exh.57 is concerned, it cannot be treated as a separate application and under these circumstances both the applications are required to be considered together, while deciding the question of withdrawal of the suit. Under these circumstances, there is no substance in the preliminary objection raised by Mr.A.J.Patel that since the order passed below Exh.57 is interlocutory in nature, this revision is not maintainable. Coming to the facts of the case, the plaintiffs instituted a suit for specific performance of agreement to sell executed by the defendants on 11-3-1986, which is a registered Banakhat. Subsequently, the plaintiffs have also executed another agreement to sell in favour of the respondents No.2 to 5 herein, which is dated 14-9-1987. The respondents No.2 to 5 have also instituted separate Special Civil Suits for enforcing the aforesaid agreement to sell dated 14-9-1987. In the said suits, plaintiffs as well as the defendants of the suit in question are party defendants. Under these circumstances, the main question, which requires consideration is whether the original plaintiffs have absolute right to withdraw the suit unconditionally and whether the applicant-third party is entitled to apply under Order 1 Rule 10 for being joined as a party to the suit. Mr.B.S.Patel for the original plaintiffs as well as Mr.Vyas appearing for the original defendants of the suit have relied upon the decision of the Apex Court in the case of Ramprasad Dagaduram v. Vijay kumar Motilal Hirakhanwala and Ors., reported in 1967 S.C. 278. In the aforesaid judgement, it has been observed in para 19 as under : "19. The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S.22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S.22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815. The rigour of this law has been mitigated by the proviso to S.21(1) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to S.21 (1) of the Indian Limitation Act, 1963 has no application to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958."