SCA/121320/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1213 of 2008 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 ? ================================================= IBRAHIM YAKUBBHAI DOBA POA OF ZULEKHA BIBI KASIM - Petitioner(s) Versus RAHIMBHAI JIVABHAI KURESHI POA OF ZUBEDA D/O IBRAHIM & 1 - Respondent(s) ================================================= Appearance : MR AMIT V THAKKAR for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR SK BUKHARI for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/07/2008 ORAL JUDGMENT SCA/121320/2008 2/8 JUDGMENT Rule. Shri S.K.Bukhari, ld.advocate waives service of rule on behalf of respondent No.2, who is the main contesting party. 2. With the consent of ld.advocates, the petition is taken up for final hearing today. 3. By way of this petition, under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for an appropriate writ, order or direction and to quash and set-aside the order dated 12.12.2007 passed by the ld.Principal Civil Judge, Kathor, Surat, below Exh.44 in Regular Civil Suit No.24/2006, by which, the ld.Trial Court has allowed the application submitted by the respondent No.2 - third party, by permitting him to be joined as party defendant to the aforesaid suit filed by the petitioner – original plaintiff. 4. It appears that petitioner – original plaintiff has filed the Regular Civil Suit No.24/2006 in the Court of ld.Principal Civil SCA/121320/2008 3/8 JUDGMENT Judge, Kathor, Surat claiming to be owner of the property in question as heir of deceased Ibrahim Mohammed Jadavat. In the said suit, respondent No.2 herein third party filed an application below Exh.44 for permitting him to be joined as party defendant, by claiming to be the grandson of one Yusuf, son of Ismail brother of Ibrahim Ahmed Lokhat and thus claimed to have interest in the property in question. 5. Shri Amit Thakkar, ld.advocate appearing on behalf of the petitioner has vehemently submitted that first of all there is no relief sought against the third party. It is also further submitted that looking to the nature of controversy raised in the suit and the relief sought, the third party cannot be said to be the interested and/or appropriate party, and, therefore, the learned Trial Court has committed an error in allowing the application below Exh.44. It is also submitted by him that as such respondent No.2 has already filed a substantive SCA/121320/2008 4/8 JUDGMENT suit, being Regular Civil Suit No.4/2007, before the learned Trial Court for redemption of the mortgage with respect to the very property in question. Therefore, it is requested to allow the present Special Civil Application. 6. Shri S.K.Bukhari, ld.advocate appearing on behalf of respondent No.2 has submitted that the entry, name of Ismail, brother of Ibrahim Ahmed Lokhat was also mentioned along with the name of Ibrahim and respondent No.2. Being the son of grandson of Yusuf s/o.Ismail, brother of Ibrahim Ahmed Lokhat, he has an interest in the property in question, and therefore, the ld.Trial Court has rightly allowed the application, Exh.44. He has heavily relied upon the decisions of the Honourable Supreme Court in the case of Amit Kumar Shaw and Anr. Vs. Farida Khatoon & Anr. reported in (2005)11 SCC 403 (Paragraph 9 & 10)and another decision of the Honourable Supreme Court in the case of Sumtibai & Ors. Vs.Paras Finance Co.Regd.partnership firm reported in AIR SCA/121320/2008 5/8 JUDGMENT 2007 SC 3168 (paragraph 14). By making the above submissions and relying upon the above decisions, Shri Bukhari, learned advocate has requested this Court to dismiss the present Special Civil Application. 7. Heard ld.advocates on behalf of the respective parties. It is required to be noted that the petitioner has filed the aforesaid suit claiming to be the owner of the property in question, as heir of Ibrahim Mohammed Jadavat. Respondent No.2 claims to have some interest in the property in question, being son of grandson of Yusuf s/o.Ismail, brother of Ibrahim Ahmed Lokhat. It appears that respondent No.2 claims to have some interest on the basis of some entry in the revenue record, in which, name of Ismail, brother of Ibrahim Ahmed Lokhat was mentioned. There is a serious dispute, whether respondent No.2 has any interest in the property in question. Still it is required to be noted that respondent No.2 has already filed a substantive SCA/121320/2008 6/8 JUDGMENT suit before the ld.Trial Court, being Regular Civil Suit No.4/2007, for redemption of mortgage of the very property in question. Under the circumstances, it appears to the Court that if both the aforesaid suits are directed to be consolidated and heard together to avoid any conflicting orders, the same would meet the ends of justice, and therefore, the order is required to be passed accordingly. Considering the submissions of Mr.Bukhari, ld.advocate for respondent No.2 that the suit filed by the petitioner against respondent No.1 is in collusion, then he may obtain some collusive decree. In the circumstances, if the aforesaid suits are directed to be heard together, then in that case, the apprehension would not survive. 8. Under the circumstances, the impugned order passed by the ld.Principal Civil Judge, Kathor, Surat dated 12.12.2007 below Exh.44 passed in Regular Civil Suit No.24/2006 requires to be quashed and set-aside, and both the suits SCA/121320/2008 7/8 JUDGMENT i.e. Regular Civil Suit No.24/2006, pending in the Court of ld.Principal Civil Judge, Kathor, Surat and Regular Civil Suit No.4/2007 are required to be heard together, subject to the objections, if any by petitioner – original plaintiff of Regular Civil Suit No.24/2006 with respect to the maintainability or locus of plaintiff of Regular Civil Suit No.4/2007. 9. For the reasons stated above, the petition succeeds. The impugned order passed by the ld.Principal Civil Judge, Kathor dated 12.12.2007 in Regular Civil Suit No.24/2006 is hereby quashed and set-aside and it is directed that Regular Civil Suit No.24/2006 and Regular Civil Suit No.4/2007 be heard together by the Court, in order to avoid any other contradictory and conflicting orders. Shri Amit Thakkar appearing on behalf of the petitioner has stated that he has no objection if both the aforesaid suits are heard together. 10. Rule is made absolute accordingly. There SCA/121320/2008 8/8 JUDGMENT shall be no order as to costs. (M.R. SHAH, J.) (binoy)