SCA/5051/2006 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5051 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 ? 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 ========================================================= KALIDAS RAMUBHAI PATEL - Petitioner(s) Versus VIRATKUMAR SHOBHAGMAL MEHTA & 8 - Respondent(s) ========================================================= Appearance : MRS KETTY A MEHTA for Petitioner(s) : 1 - 6. MR DHAVAL D VYAS for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/04/2008 ORAL JUDGMENT SCA/5051/2006 2/16 JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioners – original defendants No.2, 4, 5, 7, 8 and 9 have prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 7th March, 2006, passed by the learned Senior Civil Judge, Surat below Exh.42 passed in Special Civil Suit No.49 of 2005 by which the learned Judge has allowed the said application submitted by the original plaintiff permitting them to withdraw the aforesaid Special Civil Suit No.49 of 2005 with a liberty to file a fresh suit on the same subject matter. 2. The facts leading to the present Special Civil Application in a nutshell are as under:- 2.1 Respondent No.1 herein – original plaintiff preferred a Special Civil Suit No.49 of 2005 on 3.3.2005 against the petitioners herein – original defendants No.2, 4, 5, 7, 8 and 9 as well as respondents No.2, 3 and 4 herein i.e. defendants No.1, 3 and 6 in the Court of learned Senior Civil Judge, Surat, for specific performance of the agreement to sell/Satakhat dated 17.10.1991 by which the defendants agreed to sale the property of Survey No.46, Hissa No.1, Block SCA/5051/2006 3/16 JUDGMENT No.127 ad-measuring 6 Hectare – 28 Are and 27 sq.mtr of Village Sarsana, Taluka Choryasi, District Surat for a sale consideration of Rs.12,50,000/-. It was alleged that an amount of Rs.7,95,000/- was paid by cheque and cash, and though he was ready and willing to perform his part and to pay the balance amount of sale consideration, the defendants were not acting as per the Satakhat/agreement to sell. Written statement was filed pointing out that the original defendants No.1, 3 and 6 had already expired who were having interest in the property and their heirs are not brought on record, and at the time of filing of the suit, they had already died and, therefore, the suit is not maintainable. That thereafter the respondent No.1 herein – original plaintiff submitted application Exh.42 to permit him to withdraw the said suit with a liberty to file a fresh suit for same cause of action by submitting that there are some formal defects and suit cannot be proceeded further due to technical reasons. The said application below Exh.42 came to be objected by the petitioners - original defendants No.2, 4, 5, 7, 8 and 9 by submitting that it was within the knowledge of the plaintiff at the time of filing of the suit that the original defendants No.1, 3 and 6 had already expired and still the suit was filed without joining the heirs on record and, therefore, the plaintiff SCA/5051/2006 4/16 JUDGMENT has not come with clean hands. So the permission may not be granted in favour of the plaintiff to file a fresh suit. It was also further submitted that no formal defects and/or technical reasons have been pointed out in the application and, therefore, it was requested to dismiss the application below Exh.42, and it was requested not to grant the permission to the plaintiff to file a fresh suit. The learned Senior Civil Judge, Surat, by his impugned order dated 7th March, 2006, allowed the application below Exh.42 and granted the said application and permitted the respondents herein-original plaintiff to withdraw the Special Civil Suit No.49 of 2005 with a liberty to file a fresh suit for the same cause of action subject to payment of Rs.2,000/- to the defendants towards costs. 2.2 Being aggrieved and dissatisfied with the impugned order dated 7th March, 2006, passed by the learned Principal Senior Civil Judge, Surat, passed below Exh.42 in Special Civil Suit No.49 of 2005 in granting the prayer of the original plaintiff to withdraw the said suit with a liberty to file a fresh suit, the petitioners herein - original defendants No.2, 4, 5, 7, 8 and 9 have preferred the present petition under Article 227 of the Constitution of India. SCA/5051/2006 5/16 JUDGMENT 3. Mrs.Ketty Mehta, learned advocate appearing on behalf of the petitioners has vehemently submitted that the trial court has committed an error in allowing the original plaintiff to withdraw the said suit with a liberty to file a fresh suit. It is submitted by her that the trial court has failed to appreciate that in the application Exh.42, it was not shown as to what were the formal defects and technical reasons for which the plaintiff wanted to withdraw the suit with a permission to file a fresh suit. It is also submitted that the trial court has failed to appreciate that the defect of non-joinder of parties cannot be treated as formal defect as it results in failure of the suit and cannot be given a second chance to the plaintiff and results into multiplicity of proceedings. It is also further submitted that the trial court has also not properly appreciated and considered the decision of this Court in the case of PURJI JINABHAI KOTECHA VS. AMBALAL KANJIBHAI PATEL reported in 13 GLR 334 wherein it is held that, if the defect is on merits, the Court has no jurisdiction to grant permission to withdraw the suit and the permission granted by the Court was a wrong exercise of jurisdiction. 3.1 It is further submitted that the trial court has not SCA/5051/2006 6/16 JUDGMENT properly appreciated the difference between the formal defect and the defect which may result into failure of the suit. It is also further submitted by Mrs.Mehta, learned advocate appearing on behalf of the petitioners that the trial court has erred in not taking into consideration the well settled principles of law as decided in the case of ASIAN ASSURANCE COMPANY LIMITED VS MADHOLAL SINDHU AND OTHERS reported in AIR 1950 Bombay 378 in which it is held that the defect of non-joinder of some of the parties to the suit is not a formal defect as contemplated by Order XXIII Rule 1(2) of the Code of Civil Procedure. It is further submitted that the trial court has failed to appreciate that failure to join the heirs of a dead person amounts to abatement of the suit against the dead person. It is submitted that in the present case the defendants No.1, 3 and 6 were dead when the suit was filed and, therefore, the suit had already abated against them. Thereafter their heirs could not have been brought on record in the suit. It is submitted that such a defect is not a formal defect which can be allowed to be corrected by allowing to file a fresh suit. 3.2 Mrs.Mehta, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of this SCA/5051/2006 7/16 JUDGMENT Court in the case of Purji Jinabhai Kotecha (supra) as well as in the case of BAI MARU MAMAN VS. SAIYED LATIF reported in 1962 GLR 80 as well as the decision of the Bombay High Court in the case of Asian Assurance Company Limited (supra) in support of her prayer to allow the present Special Civil Application and quash and set aside the impugned order passed by the trial court allowing the application Exh.42 by granting the permission to the plaintiff to file a suit for the same cause of action. No other submissions have been made. 4. Petition is opposed by Shri D.D.Vyas, learned senior advocate appearing on behalf of original plaintiff. It is submitted by Mr.Vyas that, in view of the fact that the petitioners and others have already sold the property in question soon after the impugned order passed by the trial court allowing the application Exh.42 and before filing of the present Special Civil Application and, therefore, they do not have any right, title or interest in the property in question and, therefore, the present Special Civil Application at the instance of the petitioners is not maintainable. He has heavily relied upon the decision of this Court in the case of VALLABHDAS NANDLAL PANCHAMIYA VS. MANSUKHLAL BHAGWANJI AND ANOTHER reported in 1974 GLR 217. It is SCA/5051/2006 8/16 JUDGMENT submitted that, in the aforesaid decision, this Court has held that, if the litigant did not have any interest during the pendency of the litigation, it is difficult to say that his right to continue litigation exists even after his interest no longer subsisted. 4.1 Mr. Vyas, learned senior advocate appearing on behalf of the original plaintiff has submitted that, even otherwise looking to the conduct of the petitioners i.e. suppression of material facts which dis-entitles the petitioners to claim any relief in the present petition under Article 227 of the Constitution of India. It is submitted that the petitioners have suppressed the material facts of transferring the property prior to filing of the petition. It is also submitted that, even at the time of hearing of the present Special Civil Application on 22.3.2006 the learned advocate appearing on behalf of the petitioners did not point out that the property in question is already sold by them. It is submitted that the petitioners have deliberately suppressed the aforesaid facts. Mr.Vyas, learned senior advocate appearing on behalf of the original plaintiff has heavily relied upon the affidavit-in-reply filed by the respondent No.1-original plaintiff. It is further submitted that, even at the time of hearing of application SCA/5051/2006 9/16 JUDGMENT Exh.42, the petitioners did not point out even before the trial court that the property is already transferred/sold. It is submitted that the impugned order came to be passed by the trial court permitting the plaintiff to withdraw the suit on 7.3.2006 and immediately on the next day a caveat was filed by the present petitioners before the learned Civil Judge (S.D.), Surat, pointing out that the property in question is already sold by them. It is submitted that this shows the mala fide intention on the part of the petitioners. It is further submitted that in the affidavit-in-reply to the petition, the contention was raised by the respondent No.1 with respect to suppressing the material facts, and in spite of the aforesaid aspects, the petitioners did not disclose about the transaction made by them and suppressed the same. If they have transferred the property in question, then they will not have any interest in the property and, therefore, they could not have filed the main petition. 4.2 It is further submitted that the present Special Civil Application came up for hearing before this Court on 22.3.2006, a notice was issued and it again came up for hearing on 20.4.2006 where the impugned order passed below Exh.42 was stayed. It is further submitted that thereafter the SCA/5051/2006 10/16 JUDGMENT matter came up for hearing on 2.5.2006 where the Rule was granted and the status-quo prevailing as on that day between the parties to the suit was ordered to be maintained. It is submitted that thereafter a note was filed by the petitioners and this Court passed an order on 4.5.2006 modifying the earlier order, and even at that stage also it was deliberately suppressed that the petitioners have transferred the property in question to the third party. It is submitted that the property in question has already been sold away on 25.5.2005. It is, therefore, submitted that looking to the above conduct and the suppression of material facts before this Court, the present petition is required to be dismissed with exemplary costs. 5. Heard the learned advocates appearing for the respective parties. 6. Respondent No.1 herein – original plaintiff filed a Special Civil Suit No.49 of 2005 before the learned Civil Judge (S.D.), Surat, for specific performance of the agreement to sell dated 2.1.1991 and in which 9 persons are shown to be the persons shown as seller. All the 9 persons party to the said agreement to sell were joined as party defendants. A written SCA/5051/2006 11/16 JUDGMENT statement came to be filed on behalf of the petitioners pointing out that the original defendants No.1, 3 and 6 have expired long back. Thereafter the application below Exh.42 was given by the respondent No.1 herein – original plaintiff to permit him to withdraw the said suit with a liberty to file a fresh suit submitting that there are formal defects, and due to technical reasons and the said application came to be allowed. It is not that all the persons party to the agreement to sell were not joined as party defendants. It is not a case of total non-joinder of proper parties. It is the contention of the learned advocate appearing on behalf of the petitioners that a defect of non-joinder of parties cannot be treated as formal defect and the said defect is on merits and, therefore, the trial court ought not to have granted permission to the plaintiff to withdraw the said suit with a liberty to file a fresh suit by giving second chance to the plaintiff. In support of her above submissions, learned advocate has relied upon the decision of this Court in the case of Purji Jinabhai Kotecha (supra) and Bai Maru Maman (supra) and the decision of Bombay High Court in the case of Asian Assurance Company Limited (supra). On considering the above three decisions relied upon by the learned advocate appearing on behalf of the petitioners, it appears that, in all the aforesaid three SCA/5051/2006 12/16 JUDGMENT decisions, there was a total non-joinder of parties to the suit, and considering the same, it is held in the aforesaid decisions that the defect of non-joinder of parties cannot be treated as formal defect as it results into failure of the suit and cannot be given a second chance to the plaintiff. There cannot be any dispute with respect to the proposition of law laid down by this Court as well as Bombay High Court in the aforesaid three decisions. However, in the present case, as stated above, this is not a case of total non-joinder of parties and all the persons/parties to the agreement to sell were joined as party defendants. 7. It is also the contention of the learned advocate appearing on behalf of petitioners that failure to join the heirs of dead persons amounts to abatement of the suit against the dead persons. Such a submission cannot be accepted. Suit would be abated if during the pendency of any proceedings/suit, a litigant has expired and his heirs are not brought on record. 8. Even otherwise considering the conduct on the part of the petitioners and suppression of material facts of disposing and/or selling the property in question much before filing of SCA/5051/2006 13/16 JUDGMENT the Special Civil Application and even not disclosing the same at the time of hearing of application Exh.42 dis-entitles the petitioners the relief sought in the present Special Civil Application under Article 227 of the Constitution of India. Any relief in a petition under Article 227 of the Constitution of India would be a discretionary relief, and if it is found that any party has tried to mislead the Court and/or suppressed the material facts, the same will be the ground of dis-entitling the party to claim any relief in a petition under Article 227 of the Constitution of India. 9. As stated hereinabove, the property in question was already sold by the petitioners by registered sale deed dated 25.5.2005 and the application Exh.42 came to be submitted by the plaintiff on 17.2.2006 and the said application came to be decided and disposed of by the trial court on 7.3.2006 and till then the petitioners never pointed out before the trial court that they have already sold the property in question. Not only that but even in the present Special Civil Application which is filed on 18.3.2006 the petitioners have not stated in the petition that they have already sold the property in question. Not only that they have even not pointed out the same before this court at the time of issuing the notice/rule and at the time SCA/5051/2006 14/16 JUDGMENT when this Court granted the stay of the impugned order passed below Exh.42 and granting of the order of status-quo. Thus, the petitioners have suppressed the material facts from this Court as well as from the trial court and by not submitting the aforesaid facts they have tried to mislead this Court which dis-entitles the petitioners the discretionary relief in a petition under Article 227 of the Constitution of India. Mrs. Mehta, learned advocate appearing on behalf of the petitioners has submitted that considering the lis pendent the petitioners were not required to point out that they have already sold the property. Such a submission is required to be rejected outright. It was the duty of the petitioners to point out before the trial court as well as before this Court the fact that they have already sold the property in question. It appears that the petitioners might have apprehended that, if it is brought on record that they have already sold the property, it can be said that they have lost the interest in the property and they will not be in a position to litigate further with respect to the property in question and/or for some other reasons they have suppressed the material facts and selling the property. As held by this Court in the case of Vallabhdas Nandlal Panchamiya (supra), if the litigant did not have any interest during the pendency of the litigation, it is difficult to say that SCA/5051/2006 15/16 JUDGMENT his right to continue litigation exists even after his interest no longer subsisted. Looking to the above, apart from the fact that considering the suppression of material facts and misleading the Court, the petitioners are not entitled to any relief in the present Special Civil Application, even otherwise, considering the fact that the petitioners have already sold the property in the year 2005 much prior to the filing of the present Special Civil Application, they have no right, title or interest in the property in question and, therefore, it cannot be said that their right to continue litigation exists. Under the circumstances also the present Special Civil Application at the instance of the petitioners for the property in question is not maintainable and/or would not survive. 10. Considering the above facts and circumstances of the case, when the trial court has allowed the application Exh.42 granting the respondent No.1 herein – original plaintiff to withdraw the said suit with a liberty to file a fresh suit, it cannot be said that the trial court has committed an error and/or any illegality and/or the said order is so perverse which requires interference by this Court in a petition under Article 227 of the Constitution of India. SCA/5051/2006 16/16 JUDGMENT 11. For the reasons stated above, petition fails and requires to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief, if any, stands vacated forthwith. ( M.R. SHAH, J. ) syed/