Gujarat High Court
Vinodkumar Mansukhlal Kaniya & vs Jayantilal Ramanlal Tailor & 5 on 2 April, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
C/SCA/11516/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11516 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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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 ?
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VINODKUMAR MANSUKHLAL KANIYA & 1....Petitioner(s)
Versus
JAYANTILAL RAMANLAL TAILOR & 5....Respondent(s)
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Appearance:
MR DHAVAL D VYAS, ADVOCATE for the Petitioner(s) No. 1 - 2
MR MP SHAH, ADVOCATE for the Respondent(s) No. 2 - 6
MS. KRUTI M SHAH, ADVOCATE for the Respondent(s) No. 2 - 6
MR ARPIT A. KAPADIA WITH MS. SHAILI A KAPADIA, ADVOCATE for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 02/04/2014
Page 1 of 6
C/SCA/11516/2009 JUDGMENT
ORAL JUDGMENT
1. Petitioners' application (Exh.14) to join them as party came to be rejected by the learned trial court. Hence, the present petition.
2. It appears that Special Civil Suit No.228 of 2004 instituted by respondent No.1 against respondent Nos.2 to 6 for the suit property situated at Village Umra. It also appears that the suit property consists of Plot Nos.20 to 23 and 28 to
30. It is the say of the plaintiff in the said suit that by document dated 15.7.2004, the defendant had sold the property at Rs.5 lacs. Thereafter, later on, issuing of public notice in the newspaper by the defendant had led the respondent No.1 to institute a suit for specific performance against the defendant Nos.2 to 6. The defendant denies all the assertions of the plaintiff. The present petitioners have applied vide Exh.14 to join them as party, as it is the say of the petitioners that they own and possess Plot Nos.22 and 23.
3. In fairly elaborate order, the learned trial court has rejected the petitioners' application mainly on the ground that the present petitioners do not acquire any right as alleged by them inasmuch as the documents on which the present petitioners placed reliance are not sufficiently stamped and the same is not registered. Further, it appears that learned trial court has expressed doubt that predecessor of the present petitioners having any right in the property. Holding so and considering the rival submissions of the parties, learned trial court has rejected the petitioners' application.
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4. Heard learned advocate Mr.Dhaval D. Vyas for the petitioners, learned advocate Mr.Arpit Kapadia for the respondent No.1 and learned advocate Ms.Kruti Shah for respondent Nos.2 to 6.
5. Learned advocate Mr.Vyas, after referring the facts of the case, has pointed out that predecessor of the respondent No.1 - original plaintiff had instituted Regular Civil Suit No.115 of 2000 in respect of this suit property without impleading the present petitioners are party. On coming to the notice of the pendency of the suit, the present petitioners had applied therein to be impleaded as party and in the said suit, the Court had allowed the present petitioners' application for impleading as party. Further, it was pointed out that in the said suit, the present petitioners had opposed injunction application of the plaintiff of the said suit and the learned trial court along with other reasons has also considered the objection raised by the present petitioners in considering and rejecting plaintiff's application for interim injunction. Mr.Vyas has drawn attention to a decision of the Supreme Court in the case of Sumtibai & Ors. v. Paras Finance Co. & Ors., reported in (2007) 1 SCC 82.
6. On the other hand, learned advocate Mr.Kapadia has seriously opposed the present petition. It was submitted that respondent No.1 - original plaintiff has instituted the suit for specific performance. Mr.Vyas submitted that plaintiff's claim and right can very well be adjudicated even in absence of present petitioners. It was submitted that learned trial court has quite closely considered the merits of the case and no interference is called for in the order of the learned trial Page 3 of 6 C/SCA/11516/2009 JUDGMENT court. Mr.Kapadia has also drawn attention to affidavit-in- reply filed by the respondent No.1, especially Para.7, 8 and 9. It was submitted that impleading the present petitioners as party would prejudice the case of the plaintiff.
7. It is not possible to agree with the submission of learned advocate Mr.Kapadia. Mere joining the party to the suit proceedings itself would not prejudice the case of the plaintiff. It was not pointed out that how joining of the party itself would cause prejudice to the plaintiff. In fact, it is the submission of learned advocate for the respondent No.1 that considering the nature of document on which the petitioners placed reliance, they have no enforceable right or interest in the property. If it is so then the petitioners would suffer the consequence of having advanced their claim on the basis of document which is not enforceable. The merits of the case are not required to be examined at this stage. The trial court has committed an error in indulging in this exercise. It is not in dispute that suit property in respect of which the plaintiff has instituted the suit and in respect of which, the petitioners advanced the claim, are the same. Further, it appears to be the case of the petitioners that they are in possession of the suit plot Nos.22 and 23. Further, still, the fact that Regular Civil Suit No.115 of 2000 was instituted qua suit property by predecessor of the present plaintiff and therein, the present petitioners were later on impleaded as party are sufficient reasons for allowing the present petition.
8. In Sumtibai's case (supra), the Hon'ble Supreme Court has held in Para.9 and 14 as under :
Page 4 of 6C/SCA/11516/2009 JUDGMENT "9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others - (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.
14. In view of the aforesaid decisions we are of the opinion that Kasturis case (supra) is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific Page 5 of 6 C/SCA/11516/2009 JUDGMENT performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."
9. It can be said that if the party shows that it has some semblance of interest in the property, then such party can claim to be impleaded as party. In the present case, above discussion would show that some right of the present petitioners - so as to implead them as party - cannot be denied.
10. In view of the above, present petition deserves to be allowed and the same is allowed. The order, dated 21.8.2009, passed below Exh.14 in Special Civil Suit No.228 of 2004 by the learned trial court is hereby quashed and set aside. The learned trial court to proceed with the suit in accordance with law.
Rule is made absolute.
(R.D.KOTHARI, J.) vipul Page 6 of 6