Gujarat High Court
Dhiren Kantilal Dattani vs Naru Sida Jam (Gadhvi) on 30 January, 2024
NEUTRAL CITATION
C/SCA/8575/2020 ORDER DATED: 30/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8575 of 2020
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DHIREN KANTILAL DATTANI
Versus
NARU SIDA JAM (GADHVI)
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 30/01/2024
ORAL ORDER
1. The present petition is filed praying to quash and set aside the order dated 24.6.2020 passed by the learned Principal Senior Civil Judge, Khambhaliya in an application below Exh.24 in Regular Civil Suit No.7 of 2020 under Order 1 Rule 10 of the Code of Civil Procedure (`CPC' for short), whereby the application of the petitioner to join the present respondent no.2-Rinaben Vivekkumar Tripathi as party defendant no.2 in the suit, was rejected.
2. The brief facts leading to filing of this petition, as stated in the petition, are such that the petitioner is the original plaintiff and respondent no.1 is the original defendant in Regular Civil Suit No.7 of 2020; that the petitioner purchased the open plot being City Survey No.3471 and 3471, plot no.2 in seat no.50 at Jodhpur Gate Area of Khambhaliya vide registered sale deed no.4715 dated Page 1 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined 4.12.2011 and since then the aforementioned open plot is of the ownership of the petitioner; that on the north side, there is road to approach the plot of petitioner and on south side of said plot there is 10 ft. road to approach the adjoining plots belonging to other plot holders; that the said road is a common road to be used for all the plot holders and the said road can be used by way of putting an access; that the respondent no.1 herein has started putting up construction in south side of the plot of the petitioner on the common road of 10ft, which is ultimately creating obstruction in free use of common road to be used by all the plot holders; that some part of the plot of the petitioner is also encroached upon while carrying out the aforesaid illegal construction; the petitioner initially asked the respondent no.1 not to make any construction and later on approached the concerned authorities; however, as no action was taken by the authorities, the petitioner filed the impugned suit seeking declaration and permanent injunction against such illegal construction on the common road by respondent no.1 and also prayed for removal of such illegal construction on the road; application Exh.5 was also preferred along with the suit; that the respondent no.1 filed an application under Order 1 Rule 10(2) of the CPC seeking to delete him as party defendant as the residential house and shop near the suit plot as pleaded in the plaint are not of his ownership and he has Page 2 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined no right, title and interest in the same; that the petitioner inquired and learnt that the respondent no.2 herein is the registered owner of the nearby residential house and shop described in the pleading the plaint and therefore, filed the application Exh.24 under Order 1 Rule 10 of CPC seeking to join the respondent no.2 herein as party defendant no.2 and for necessary amendment in the suit and Exh.5 application. The said application was rejected and therefore the present petition is filed under Article 227 of the Constitution of India.
3. Heard learned advocate Mr.Rachh for the petitioner and learned advocate Mr.Kaushal Modi for learned advocate Mr.Dagli for the respondent no.2.
4. Learned advocate Mr.Rachh has drawn my attention towards the application filed at Exh.24 filed under Order 1 Rule 10 of the CPC, which is rejected on the ground that the proposed defendant is neither proper nor necessary party. Learned advocate Mr.Rachh has submitted that this finding of the learned trial court is erroneous as the proposed defendant is the owner of the residential house and shop near the suit plot as pleaded in the plaint and as per the suit filed by the present petitioner, one person Naru Sida Jam-respondent no.1 herein has put up the construction on Page 3 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined the south side of the plot of the petitioner on the common road of 10 ft. When the suit is filed, Naru Sida Jam has filed his reply whereby he has submitted that he has not put up construction and the said land is owned by some other person and the said person Naru Sida Jam had filed application under Order 1 Rule 10(2) of CPC to delete his name. On inquiry, it is found that the proposed defendant is putting up the construction in the land in question which is subject matter of the suit in question. Therefore, he has filed the application at Exh.24 to implead her as party. Learned advocate Mr.Rachh submitted that though the sale deed in the name of the proposed defendant of suit land is already available on record, the court has committed error in rejecting the application. He, therefore, submits that the proposed defendant can certainly be considered as proper as well as necessary party as ultimately any relief granted in the suit will directly affect the proposed defendant and therefore he prayed to allow this petition by exercising the powers under Article 227 of the Constitution of India.
5. Learned advocate Mr.Modi for the respondent no.2 has strongly opposed the submission made at the bar and has submitted that in absence of any documentary evidence by the petitioner to establish his case that the proposed Page 4 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined defendant is putting up construction, the learned trial court has rightly rejected the application filed under Order 1 Rule 10 of CPC. He has further submitted that when there is no documentary evidence produced by the plaintiff in support of his application to implead her as party under provisions of Order 1 Rule 10 of CPC, the learned trial court has rightly considered the aspect that such party cannot be considered as proper or necessary party for deciding the suit.
6. Learned advocate Mr.Modi has relied on the judgment in the case of Ramayan Singh V/s Jogi Singh V/s Sheo Nath Singh s/o Tuangar Singh of the Patna High Court reported in 2021(2) BLJ 333, more particularly, paragraph 6 of the same and submitted that in absence of any document produced in support of such application, such application is rightly rejected by the learned trial court and therefore no interference is called for by this court under Article 227 of the Constitution of India. He, therefore, prayed to dismiss this petition.
7. I have considered the rival submissions made at the bar and also considered the scope of provisions of Order 1 Rule 10 of CPC which reads as under:
"10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff Page 5 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant Page 6 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined (5) Subject to the provisions of the 1 [Indian Limitation Act, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
8. There is no dispute that the suit is filed regarding some construction put up on the common road by original defendant-Naru Sida Jam who has thereafter filed the application to delete his name on the ground that the adjacent land does not belong to him. On inquiry, it was found that the proposed defendant Rinaben Vivekkumar Tripathi, who is the owner of the land in question has started putting up the construction on the disputed premises. Therefore, the petitioner has filed application to implead the proposed defendant along with the sale deed of the property of the proposed defendant no.2 with a view to indicate that she is the owner of the land in question. Therefore, considering the documentary evidence available on the record and looking to the controversy involved in the main suit, the proposed defendant can certainly be considered as necessary party and also proper party.
9. The Hon'ble Apex Court has discussed the scope of deciding application under Order 1 Rule 10 of CPC by series of judgments. Considering the said aspect, when the Page 7 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024 NEUTRAL CITATION C/SCA/8575/2020 ORDER DATED: 30/01/2024 undefined respondent-proposed party could not have shown any prejudice caused to her if she is impleaded as party and on the contrary, she will get all the rights to contest the suit on merit, she ought to have been joined as party-defendant in the suit.
10. Considering the totality of circumstances and considering the fact that the documentary evidence indicates that the proposed respondent is owner of the land adjacent to the disputed land, the learned trial court has committed any error in law and jurisdiction by rejecting the application of the present petitioner.
11. In view of the above, this petition is allowed. The impugned order dated 24.6.2020 passed by the learned Principal Senior Civil Judge, Khambhaliya in an application below Exh.24 in Regular Civil Suit No.7 of 2020 under Order 1 Rule 10 of the CPC is quashed and set aside. The present respondent no.2-Rinaben Vivekkumar Tripathi is permitted to be added as party defendant no.2 in the suit. It is further directed that the learned trial court shall proceed with the suit after giving opportunity of hearing to the parties, more particularly, the newly added party and thereafter decide the suit proceeding as expeditiously as possible in accordance with law.
(SANDEEP N. BHATT,J) SRILATHA Page 8 of 8 Downloaded on : Wed Jan 31 20:45:16 IST 2024