SCA/29956/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29956 of 2007 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 ? ========================================================= RASHID MAHAMMADBHAI BELIM - Petitioner(s) Versus PASCHIM GUJARAT VIJ COMPANY LTD & 3 - Respondent(s) ========================================================= Appearance : MR MA BUKHARI for Petitioner(s) : 1, MR GIRISH D BHATT for Respondent(s) : 1 - 3. MR ASHOK YAGNIK for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/07/2008 ORAL JUDGMENT 1. Rule. Mr.G.D.Bhatt, learned advocate, waives service of notice of rule on behalf of respondent Nos.1 to 3 and Mr.Devarshi Shah, learned advocate appearing for SCA/29956/2007 2/4 JUDGMENT Mr.Yagnik, waives service of notice of rule on behalf of respondent No.4. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 2. By way of the present petition under Article 227 of the Constitution of India, the petitioner original plaintiff has prayed for appropriate writ, order or direction quashing and setting aside the order passed by learned Principal Civil Judge, Jetpur below Exh.13 in Regular Civil Suit No.104 of 2007 by which the trial Court has allowed the said application permitting respondent No.4 herein to be joined as party defendant in the said suit. 3. Mr.M.A.Bukhari, learned advocate for the petitioner, has vehemently submitted that learned trial Court has committed error in allowing the application submitted by respondent No.4 in the said proceedings as he is neither proper nor necessary party and no relief has been sought against respondent No.4. It is submitted that as such the property in question in which the petitioner – plaintiff is residing as a tenant is Wakaf property / Evacuee property and the Government is the owner and in any case, respondent No.4 has no right, title or interest in the said property. Therefore, it is submitted that learned trial Court ought not to have allowed the said application permitting respondent No.4 to be joined as party defendant in the suit filed by the petitioner – plaintiff. 4. Mr.G.D.Bhatt, learned advocate appearing on behalf of respondent Nos.1 to 3 – original defendants has SCA/29956/2007 3/4 JUDGMENT submitted that as such respondent Nos.1 to 3 have nothing to say in the present controversy except as stated in the application opposing the application before the trial Court that respondent No.4 - third party is not the owner of the property in question. 5. Mr.Devarshi Shah, learned advocate appearing on behalf of respondent No.4, has submitted that the property in question is of the ownership of the trust and respondent No.4 is a power of attorney and/or administrator of the trust and he is one of the trustees. Therefore, it is requested that learned trial Court has rightly allowed the application submitted by respondent No.4 which is not required to be interfered with by this Court in exercise of the powers under Article 227 of the Constitution of India. It is further submitted that respondent No.4 can be said to be at least proper party and, therefore, it is requested to dismiss the present Special Civil Application. 6. Heard learned advocates for the respective parties. 7. It appears that the property in question is originally belonging to the trust and is declared as evacuee property and the Government is the owner. Respondent No.4 claims to be power of attorney and administrator of the trust, but the same is not substantiated by respondent No.4 even prima facie. Under Order I, Rule 10 of the Civil Procedure Code only those persons can be permitted to be joined as defendants who are either necessary or proper party. If it is found that the third party has no title or interest in the property, he cannot be permitted to be joined as party to the proceedings. In the present case, as stated above, it is not substantiated by SCA/29956/2007 4/4 JUDGMENT respondent No.4 that he is either necessary or proper party. Under the circumstances, it appears that learned trial Court has committed error in exercising the jurisdiction by allowing respondent No.4 to be joined as party defendant as in the facts and circumstances of the case, more particularly when the property in question in which the petitioner is residing is evacuee property and the Government is the owner, respondent No.4 cannot be said to be either necessary or proper party even considering the relief claimed in the suit. 8. For the reasons stated above, the petition succeeds. The impugned order passed by learned trial Court dated 3.11.2007 below Exh.13 in Regular Civil Suit No,104 of 2007 is quashed and set aside. Rule is made absolute. Direct service is permitted. (M.R.Shah,J) pathan