SCA/6896/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6896 of 2008 For Approval and Signature: 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 ? ========================================================= JITENDRAKUMAR MANHARBHAI PRAJAPATI - Petitioner(s) Versus DHANSUKHBHAI CHUNILAL PRAJAPATI & 10 - Respondent(s) ========================================================= Appearance : MR HASIT H JOSHI for Petitioner(s) : 1, None for Respondent(s) : 1,3 - 11. NOTICE SERVED BY DS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 03/07/2008 ORAL JUDGMENT Leave to amend. In this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 8.10.2007 whereby, the learned Court SCA/6896/2008 2/7 JUDGMENT has rejected application Exh.84 preferred by present petitioner with a request for impleading three additional respondents in the suit proceedings instituted by the petitioner in 2006. One of the parties sought to be impleaded as respondent No.12 is an autonomous body of the Municipal Corporation. The other party who is sought to be impleaded as respondent No.13 is the Zonal Officer of the municipal corporation and the third party sought to be impleaded as respondent No.14 is the Executive Engineer. By the said application dated 4.8.2007 (Exh.84) the petitioner herein also prayed for permission to amend the plaint by inserting paragraphs 10(3) and 10(4) so as to add the prayer for relief against the proposed additional respondents. After hearing the applicant and opponent, the learned Court, by an order dated 8.10.2007, disallowed the application for impleading the said three parties as respondent Nos.12 to 14. The learned Court, after examining the plaint and the relief prayed for in the suit and the application Exh.84 has recorded that in view of the Court the said three parties were not relevant or necessary for SCA/6896/2008 3/7 JUDGMENT effective determination of the suit. The petitioner has produced copy of the plaint as one of the annexures to this petition. On perusal, it is seen that the said suit is preferred against respondent Nos.1 to 11 herein for declaration and partition of HUF property. In paragraph 10(1) of the plaint, the petitioner herein has prayed for the relief in respect of the property described in the suit and for the declaration in respect of the petitioner's share from amongst the undivided share. One of the prayers made in the suit is in the nature of injunction against the respondents to the effect that the said respondents may not demolish or remove the construction and/or may not transfer or assign the property to anyone and/or may not make any addition or alteration by way of additional construction or by bringing down the building. After having filed the said plaint for such purpose in November, 2006, the applicant herein moved an application in August 2007 with a request that the aforesaid three parties may be impleaded as respondent Nos.12 to 14 in the suit proceedings. The SCA/6896/2008 4/7 JUDGMENT reason cited in support of the request, as transpires from the said application, is that the petitioner apprehends that the corporation was in process of passing / approving the plans for additional construction without consent of the petitioner and without petitioner's knowledge and that the petitioner has already given an application requesting the corporation not to approve such plans. After considering the said application and the submissions of the parties, the learned Court has recorded in the order that in view of the subject matter of suit being RCS No.464 of 2006, the corporation cannot be said to be necessary party or a proper party for effective determination of the suit and that therefore, there was no justification for impleading the said parties as respondents in the proceedings, which are essentially for declaration and partition of HUF property. So far as challenge against the order passed on application dated 23.11.2007 (Exh.113) is concerned, Mr. Joshi on behalf of the petitioner submits that he does not press the said issue at this stage. Since SCA/6896/2008 5/7 JUDGMENT the petitioner is, at this stage, not challenging the order in respect of Exh.113, this Court has not entered into and/or not examined the said issue on merits. On perusal of the plaint and the relief prayed for therein and the application Exh.84, which essentially is made on mere allegation and apprehension that the corporation was in process of passing / approving the plans contrary to the law, the order of the learned trial Court appears to be just and proper and in accordance with law. In a suit proceedings filed for declaration and partition of H.U.F. and for claiming share in the undivided share of the H.U.F. property, a public body viz. Municipal Corporation, cannot be said to be necessary or proper party and a public body ought not be impleaded in suit proceedings, very lightly or without sufficient and strong reason. Sanctioning / approving plans, if at all that is in process as alleged by petitioner then also, is a part of corporation's statutory duty and merely on allegation that it would pass the plans contrary to law, corporation cannot become necessary SCA/6896/2008 6/7 JUDGMENT party in suit for division of share and partition of H.U.F. property and it ought not be ordered to be impleaded as party respondent. The learned Court has not committed any error of jurisdiction in not allowing the said application at this stage on the ground that, in view of the Court the said parties are not relevant and necessary or proper parties for the effective determination of the suit. The order is not perverse or does not suffer from any manifest and apparent error of law. Under the circumstances, this Court is not inclined to interfere in the said order in exercise of jurisdiction under Article 227 of the Constitution of India. Hence, present petition is dismissed. No order as to costs. After the order was dictated, the petitioner's advocate requested that the learned Court may be directed to decide the suit expeditiously. The plaintiff may make necessary and appropriate application and the learned Court may, subject to its roster, consider the same. SCA/6896/2008 7/7 JUDGMENT [K.M.Thaker, J.] kdc