Gujarat High Court
Shri Parshvachandragachchh Jain Trust ... vs Hitesh Mulchand Shah on 3 August, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/SCA/2275/2011 ORDER DATED: 03/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2275 of 2011
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SHRI PARSHVACHANDRAGACHCHH JAIN TRUST - PALITANA & 4
other(s)
Versus
HITESH MULCHAND SHAH & 3 other(s)
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1,2,3,4,5
MR GUNVANT B SHAH(3859) for the Petitioner(s) No. 1,4
MR JT TRIVEDI(931) for the Petitioner(s) No. 1,2,3,4,5
MR.DEVENDRA H PANDYA(6462) for the Petitioner(s) No. 1,2,3,4,5
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1,2,3,4,5
MS MEGHA CHITALIA AGP for the Respondent(s) No. 4
MR C B UPADHYAYA(3508) for the Respondent(s) No. 4
MR RJ GOSWAMI(1102) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 03/08/2023
ORAL ORDER
1. Challenge in this petition under Article 227 of the Constitution of India, is to the order dated 29.01.2011, passed below Exh. 19 in RCS No. 29 of 2011, by which, the learned Additional District Judge, Bhavnagar, transposed the defendant no. 6 Mulchand Lalji Shah, in the category of plaintiff and directed him to join as plaintiff no. 3 in the said suit.
2. Mr. Brijesh Trivedi, learned counsel for the petitioners - original defendants, has submitted that, the impugned order is dehors to the provisions of Order 1 Rule 10 of the Code of Civil Procedure, as the Court below, without appreciating the pleadings of the parties and ignoring the settled principles of law, transposed the defendant Page 1 of 5 Downloaded on : Sat Sep 16 23:59:07 IST 2023 NEUTRAL CITATION C/SCA/2275/2011 ORDER DATED: 03/08/2023 undefined as a plaintiff, whereby, the court has committed patent jurisdictional error. That, the suit is filed by sons of Mulchand Lalji Shah under Section 56A of the Bombay Public Trust Act, 1950 for declaration and injunction with regard to administration of the Trust. It is in this context, he submitted that, the Trust had decided to construct a building for religious purpose at Palitana and for the donation, the advertisement was published on 15.02.2007. That, the defendant no. 6 Mulchand Shah, who is the father of the plaintiffs
- respondents agreed to donate Rs.51 lakhs as he was the highest bidder and the proposal was accepted subject to meeting agenda held on 14.08.2007. The defendant no. 6 Mulchand Shah being a Trustee and highest bidder did not make any payment despite repeated request by the Trustees. The defendants petitioners again published advertisement for the donation and in pursuance of the notice, Rs.55 lakhs was proposed by the family of Kakubhai Shamjibhai, It is in this background facts, the sons of the Mulchand Shah filed a suit before the District Court, Bhavnagar for declaration and injunction, inter-alia, praying that the Trust be restrained in putting the name of donor on the proposed building. The said suit is filed against the petitioners including Mulchand Shah, Trustee. The plaintiff - respondent Nos. 1 and 2 moved an application for transposition of the party i.e. the defendant no. 6 Mulchand Shah be transposed and impleaded as plaintiff in the suit. The Court below considering the status as a Trustee of the trust, allowed the application and directed him to join as plaintiff no. 3.
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3. Aggrieved with the impugned order dated 29.01.2011, the Trustees of the Trust i.e. original defendants are before this Court, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
4. Mr. B.J. Trivedi, learned counsel for the petitioners has submitted that, the impugned order is not sustainable in law and while passing the order, the Court has committed an error, which is apparent on the face of the proceedings and is based on clear ignorance or utter disregard to the provisions of law.
5. Mr. H.A. Qureshi, learned advocate for Mr. R.J. Goswami, learned advocate for the respondent referring the statutory provision of Order 1 Rule 10 of the CPC has submitted that, the court has rightly exercised its jurisdiction while passing the order and no error, much error of law can be said to have been committed by the Court and therefore, considering the interest of the defendant no. 6 Mulchand Shah and the relief claimed in the suit, his presence as a plaintiff is necessary and proper for the adjudication of the suit.
6. Ms. Megha Chitalia, learned AGP adopting the arguments of Mr. B.J. Trivedi, has fairly submitted that, the court may pass necessary order in the interest of justice.
7. Having heard the learned counsel for the respective parties and perused the impugned order. Before adverting to the issues, let us examine the law on the aspect i.e. transposing the defendant as a plaintiff. It is settled position of law that, the court has power under Page 3 of 5 Downloaded on : Sat Sep 16 23:59:07 IST 2023 NEUTRAL CITATION C/SCA/2275/2011 ORDER DATED: 03/08/2023 undefined sub-rule (2) of Order 1 to transfer a defendant to the category of plaintiff. This can be done by the Court suo-motu, or on the application of any defendants provided the defendants' claim is founded on the same cause of action. In the facts of the present case, Mulchand Shah was the Trustee of the defendant no. 1 Trust. He was successful bidder for the donation, however, he failed to keep his promise and therefore, the petitioners compelled to initiate fresh proceedings for donation. The suit is filed by the sons of the defendant Mulchand Shah. The relief in suit is to the effect that, the petitioners be restrained in putting name of fresh successful bidder on the exterior part of the building. In such circumstances, the plaintiffs committed a mistake by joining his father - defendant no. 6 and later on, instead of praying to delete his name, they moved an application for transposition. In such circumstances, the court below failed to appreciate the real dispute between the parties and overlooked the facts that, being a Trustee of the Trust and without permission of the authority concerned, the defendant no. 6 cannot be joined in the suit proceedings as a plaintiff.
8. For the aforesaid reasons and considering the peculiar facts and circumstances of the present case, the error committed by the court below is manifest and apparent on the face of the proceedings, as a result, the impugned order is not sustainable in law and same is hereby quashed and set aside.
9. Resultantly, the petition is allowed. The impugned order dated 29.01.2011 is set aside. The defendant no. 6 if so desire, then, liberty is reserved to the original defendant no. 6 Mulchand Shah Page 4 of 5 Downloaded on : Sat Sep 16 23:59:07 IST 2023 NEUTRAL CITATION C/SCA/2275/2011 ORDER DATED: 03/08/2023 undefined to apply before the court concerned for deletion of his name as a defendant no. 6. Rule is made absolute to aforesaid extent.
(ILESH J. VORA,J) P.S. JOSHI Page 5 of 5 Downloaded on : Sat Sep 16 23:59:07 IST 2023