Gujarat High Court
Lhs Of Khodaji Shivaji Thakor vs Girishbhai Ranchodbhai Patel on 24 March, 2023
NEUTRAL CITATION
C/SCA/3880/2023 ORDER DATED: 24/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3880 of 2023
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LHS OF KHODAJI SHIVAJI THAKOR
Versus
GIRISHBHAI RANCHODBHAI PATEL
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1,1.1,1.1.1
for the Respondent(s) No. 1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
MR PADMRAJ K JADEJA(2095) for the Respondent(s) No. 6.1,6.2,6.3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2023
ORAL ORDER
1. The present petition is filed by being aggrieved and dissatisfied with the order dated 11.05.2022, passed by th the 9 Addl. Civil Judge, Mirzapur, Ahmedabad (Rural) in Regular Civil Suit No.300 of 2005 below Exh.70 and 143, whereby the trial Court has allowed the third party application filed by Sakariben Khodaji Shivaji Thakor - respondent No.6 herein for joining as plaintiff in the abovementioned suit.
2.1 Brief facts of the case are as such that the present petitioner had filed a Regular Civil Suit No.300 of 2005 for permanent injunction and declaration of the property Page 1 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined situated at Village: Vejalpur, bearing Revenue Survey No. 988 (New Survey No.315 - on renumbering when transferred the said property to Jodhpur Gam, Ahmedabad) admeasuring 5 acre 36 gutha. It is the case of the petitioner that the present petitioner is having the possession of the land. Moreover, the petitioner had prayed that the respondents are not having any legal right in the above mentioned property and in that regard revenue entry being Nos.418, 2698 and 8216 are also required to be cancelled as they were wrongly mutated.
2.2 Further, it is the case of the petitioner in the present petition that thereafter the third party - respondent No.6 herein had filed an application below Exh.70 and 143 for condonation of delay in joining party and application for joining party as a plaintiff respectively in Regular Civil Suit No.300 of 2005, which was erroneously allowed vide order dated 11.05.2022 by the trial Court.
2.3 It is further the case of the petitioner in the present petition that the respondent No. 6 is not the Page 2 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined daughter of deceased -Khodaji Shivaji and also pedigree, of Village Dhansol and affidavit as heir of (Daughter of fulaji) Fulaji Becharji, shows that respondent No.6 herein is not the daughter of the present petitioner's father. On the basis of that pedigree, of late Fulaji Becharji, who is real father of respondent No.6- Sakariben had been sold away the property situated at Village: Por, dist:
Gandhinagar and in exchange of consideration along with the other legal heirs respondent Nos.6.1 to 6.3. Moreover, the certificates are not in collaboration with other documentary proof, which was also obtained through DNA Certificate from a private Laboratory at Delhi to establish the heirship of respondent No.6 - Sakariben herein. Further, it is the case of the petitioner in the present petition that the present petitioner had filed an application under section 340 of Cr.P.C. below Exh.213 for registering the complaint and initiation of criminal proceedings against the third party.
2.4 It is the case of the petitioner in the present petition that respondent No.6 - Sakariben herein has also filed an application in another suit filed by respondent Nos.1 to 5 i.e. Regular Civil Suit No. 622 of 1992 for Page 3 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined permanent injunction of property bearing Jodhpur Survey No.988 (New Survey No. 315) situated at Moje: Village:
Vejalpur admeasuring 5 acre 36 gutha, whereby the respondent No.6 had filed an application at Exh.241 for delay condonation and joining party in Regular Civil Suit No.622 of 1992 and learned trial Court has rejected the third party application vide order dated 18.03.2021 and thereafter, the respondent No.6 had filed Special Civil Application No.5056 of 2022 before this Court, which was pending and the suit proceeding of Regular Civil Suit No.622 of 1992 is stayed. It is case of the petitioner that both the suits are between the same parties and identical in nature. It is also further the case of the petitioner that by way of forged pedigree of Village Dhansol, third party is joined in the suit. 2.5 It is further the case of the petitioner that the respondent No.6 is not the rightful legal heir of the present petitioner, however, it transpires from the record itself that during the pendency of the petition, the present petitioner as well as respondent Nos.1 to 5 had filed an application to withdraw the suit proceeding below Exh.226 as well as Exh.92 in the Regular Civil Page 4 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined Suit No.300 of 2005 and the Court has recorded the order on 20.02.2019, and the present petitioner as well as respondent Nos.1 to 5 herein have already filed a pursis to withdraw their suit and have waived their rights, however, when the application is filed for impleading the present respondent No.6 as party defendant at Exh.70 and Exh.143 with delay condonation application, the same view is contested by the plaintiffs, and after hearing the parties, the trial Court has allowed the application at Exh.143 and has disposed of the application at Exh.70 as it is for the same prayer made at Exh.143 application.
2.6 Thereafter, the present petition is preferred. 3.1 Learned advocate Mr. Tejas P. Satta appearing for the petitioner has argued that the trial Court has grossly erred by misreading the provisions of Order XXIII of the Civil Procedure Code, 1908, (for short, "the Code"). He has further submitted that the learned trial Court has not considered the aspect that the though the application is field at Exh.92 where the present petitioner has not himself signed the pursis but it is Page 5 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined singed by power of attorney holder of the present petitioner and he has further submitted that the said power of attorney has never produced on the record of the suit proceedings. He has further submitted that in view of the provisions of Order XXIII of the Code, if the Court is not passing any order for such application for withdrawal, the plaintiff can pursue the proceeding and the suit cannot be considered as withdrawn.
3.2 He has further submitted that from the proceeding recorded by the trial Court, it further transpires that such application, which is filed by the respective parties in the present suit as well as in the other suit filed by the respondent Nos.1 to 5 herein, are kept for further hearing, and therefore also, it cannot be concluded that the petitioner has withdrawn the suit. He has also raised objection that if anybody is aggrieved by the impugned order by the trial Court, that can be said to be defendants in the suit.
3.3 He has further submitted that from the record itself, it transpires that respondent No.6 is not a legal heir as she is not daughter of the deceased - Khodaji Page 6 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined Shivaji Thakor. Moreover, Sakariben herself by way of number documents withdrawn her name as legal heir of the original plaintiff, and therefore also, the trial Court has committed gross error in allowing the application of the respondent No.6 herein to implead her as a plaintiff in the suit. He has further submitted that there is no evidence that the present petitioner has entered into compromise with the original defendants, and therefore, it cannot be said that the present petitioner is in collusion with the defendants, and therefore, he has submitted that the present application is granted by the trial Court without considering the fact that the respondent No.6 is not an heir of the deceased and more particularly when she herself has withdrawn her right to claim anything from the property, and therefore, such application at the belated cannot be considered and granted by the trial Court and he has submitted that the trial Court has not properly dealt with the Order I Rule 10 of the Code while considering such application, and therefore, interference is required by this Court by quashing and setting aside the impugned order passed by the trial Court.
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NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined 4.1 Per contra, learned senior advocate Mr. Mehul S. Shah appearing on behalf of learned advocate Mr. Padmraj K. Jadeja for the respondents has submitted that there is no locus to the present petitioner in view of the fact that the petitioner herself has filed an application at Exh.92 on 20.02.2019 and the trial Court has recorded the order on 20.02.2019. He has relied on the judgment of the Hon'ble Apex Court in the case of Anurag Mittal Versus Shaily Mishra Mittal reported in (2018) 9 SCC 691 and more particularly paras 10, 11 & 12 are relevant and has submitted that in view of the observations made by the Hon'ble Apex Court, provisions of Order XXIII Rule 1 of the C.P.C. gives an absolute right to the plaintiff to withdraw his claim or abandon any part of his claim, and therefore, there is no doubt that order XXIII Rule 1 is applicable to the appeals as well and the appellant has right to withdraw his appeal unconditionally and if he makes such application to the Court, the Court has to grant it, therefore, he has submitted that in that case, the appeal is deemed to have been withdrawn from the date of filing of application, and therefore, he has submitted that once the application is filed for withdrawal, the appeal is Page 8 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined considered to be withdrawn.
4.2 He has relied on the judgment of the Hon'ble Apex Court in the case of M/s Hulas Rai Nath Versus Firm K.B. Bass & Co. reported in AIR 1968 SC 111, more particularly paras 2 & 3 are relevant and has submitted that the Court cannot refuse giving permission for withdrawal of the suit and cannot compel the plaintiff to proceed with, if application under Order XXIII Rule 1 is filed, and therefore, he has submitted that once the application is filed by the petitioner herein for withdrawal of the suit, his preliminary objection, about the maintainability of the present petition is at the behest of the present petitioner as the petitioner has already filed an application for withdrawal of the suit, which is way back in the year 2019 and he has submitted that the contention, regarding signature of power of attorney at the pursis, is never raised before the trial Court by the petitioner at any point of time since 2019 till today and therefore, such contention is afterthought.
4.3 He has further submitted the on the perusal of Page 9 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined impugned order also, which is passed at Exh.70 as well as 143, the trial Court has rightly considered the entire aspect by considering the various judgments of the Hon'ble Apex Court and has also rightly considered the provisions of Order I Rule 10 read with the provisions of Limitation Act and has also rightly granted the application as the petitioner has interest as an heir of the deceased, and therefore, her right cannot be denied to implead her as a plaintiff, and therefore, when the petitioner has abandoned his claim for pursuing the suit, the petitioner cannot now challenge impugned order by way of this petition.
4.4 He has relied on the judgment of the Hon'ble Apex Court in the case of Garment Craft Versus Prakash Chand Goel reported in (2022) 4 SCC 181, and has submitted that even in case of some error committed by the Court also, the Hon'ble Apex Court has said that unless it is perverse or is against the evidence available on the record, the Court should not exercise the powers under Article 227 of the Constitution of the India, and therefore, the present petition is required to be dismissed.
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NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined 5.1 I have considered the rival submissions made at the Bar. I have also considered the preliminary objection raised at the Bar by learned advocate for the respondents that the petitioner has no locus as the petitioner has filed a pursis, by which the petitioner has declared that the plaint is withdrawn unconditionally and the same is filed at Exh.92 on 20.02.2019 in the Regular Civil Suit No.300 of 2005 before the trial Court, and thereafter, the Court has recorded the same on 20.02.2019 when the petitioner has filed the pursis at Exh.92 by declaring that he is withdrawing the claim in the suit unconditionally then the suit is considered to be withdrawn on 20.02.2019.
5.2 The judgments of the Hon'ble Apex Court in the case of Anurag Mittal (supra), and more particularly paras 10, 11 and 12 are relevant, which are as under:
"10. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the Appellant and the Respondent was on 06.12.2011 i.e. before the order of withdrawal was passed by the Court on Page 11 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined 20.12.2011. There is no dispute that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011. We proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad v. Durga Prasad,4 the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel5 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The Page 12 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be 4 (1975) 1 SCC 405 5 AIR 2003 Bom. 238, 239 complete as soon as the plaintiff files his purshis of withdrawal.
11. Order XXIII Rule 1 (1) of the CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order XXIII Rule 1 (3) of the CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order XXIII Rule 1 (1) of the CPC is "absolute withdrawal"
which is different from the withdrawal after taking permission of the court, this Court held as follows:
"12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and Page 13 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted 6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458 by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC."
12. Order XXIII Rule 1 (1) of the CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28.11.2011 i.e. the date of the filing of the application for withdrawal. On 06.12.2011 which is the date of the marriage between the Appellant and the Respondent, Ms. Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void."
Further the judgment of the Hon'ble Apex Court in the case of M/s Hulas Rai Nath (supra) and more particularly paras 2 and 3 are relevant, which are as Page 14 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined under:
"2. The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1. sub-rule (i ), C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is ,-ought under sub-r. (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub- r. (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission .to withdraw the suit in such circumstances and to compel tile plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under 0. 8 C.P.C., or a counterclaim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case. the pleadings in paragraphs 8 and II of the written statement.
mentioned above, clearly did not amount to a claim for Page 15 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined set-off. Further, there could be no counterclaim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a. suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and, in fact, the appellant was still contending that there could be no rendition of accounts in the suit, because accounts had already been settled. Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts, no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim Page 16 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined any rendition of accounts from the respondent. In 'these circumstances; at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express ,my opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant. On the facts of this case. it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.
3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar and Others (1), where the Court held:
"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. ]n suits, for partition, if a preliminary. decree is passed declaring and defining the Page 17 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."
We do not think, as urged by learned counsel, that the learned Judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiff's withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such it right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier Page 18 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit."
Order XXIII Rule 1 of the Civil Procedure Code, 1908 is as under;
"1. Withdrawal of suit or abandonment of part of claim.--
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub- rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person Page 19 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff--
(a) abandons any suit or part of claim under sub- rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to Page 20 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff. 1A.When transposition of defendants as plaintiffs may be permitted.--Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
5.3 In view of the provisions of Order XXIII Rule 1(i), if I consider, which was rather explained in the above two judgments of the Hon'ble Apex Court and Order XXIII, it can be said that the suit is sought to be withdrawn by the present petitioner, and therefore, it clearly transpires that if the suit is sought to be withdrawn in the year 2019, the petitioner has no right to challenge for impleadment of the present respondent No.6 as a party in the suit and in turn the petitioner has no right to challenge the impugned order by way of filing of the present petition, and therefore, the petition is required to be dismissed on the ground that the petitioner has no right, title or interest in the suit Page 21 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined proceedings, and therefore, the present petition is required to be dismissed.
5.4 Further, moreover, it is also appropriate to examine the conduct of the present petitioner that the petitioner has contended in the present petition for the first time that power of attorney has executed that pursis at Exh.92 filed on 20.02.2019, who has signed on pursis as power of attorney holder of present petitioner - Talaji Mafaji Thakor but this contention is raised first time before this Court in the present petition. Though the said pursis is filed in the year 2019 and the Court has recorded the same by order dated 20.02.2019, even then, it transpires from the record that the petitioner has at no point of time raised any dispute about the said pursis till the impugned order is passed by the trial Court, and therefore, that contention is afterthought and the same is not required to be considered. Further, other contention raised by the petitioner is also not in consonance with the law as discussed earlier. The petitioner has no locus, and therefore, the petitioner cannot now challenge the impugned on any count. Page 22 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023
NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined 5.6 It is appropriate to consider the judgment of the Hon'ble Apex Court in the case of Garment Craft (supra), more particularly paras 15, 16 & 17 are relevant, which are as under:
"15. Shailendra Garg was released on bail on 6th May 2017 and within th 10 days of his release on 16 May 2017, he filed an application under Order IX Rule 13 of the Code for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fact that earlier production warrant had been issued and Constable Jitendra Kumar had appeared seeking clarifications. It was highlighted that Shailendra Garg being in detention, could not follow up the proceedings in the suit and it was very difficult for him to communicate with and give instructions to his counsel.
16. Upon consideration of the facts, vide detailed reasoned order dated th 24 July 2018, the application under Order IX Rule 13 of the Code was allowed, setting aside the ex-parte decree, restoring it to its original number and listing it for defence evidence. Paragraphs 8, 11 and 12 of the order read thus: Page 23 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023
NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined "8. From the certified copy of the proceedings of the suit filed by the applicant/defendant, it is evident that matter was transferred from the Hon'ble High Court to the District Court vide order dated 17.12.2015 and the same was assigned to the Court of my Ld. Predecessor on 18.02.2016. It is recorded in the order dated 14.03.2016 that defendant had been sent to jail on
06.10.2015 and thus found sufficient cause for non- filing of list of witnesses by defendant and therefore gave further time to file list of witnesses subject to costs of Rs.5,000/- and fixed the matter for 22.04.2016. On 22.04.2016, none had appeared on behalf of plaintiff whereas associate counsel for defendant had appeared who made further submissions that defendant is in judicial custody and matter was adjourned for 3.00 PM and at 3.00 PM the associate counsel produced the certificate issued by jail dated 24.01.2016 as per which defendant was in JC in connection with FIR bearing no.422/2014 in Jaipur Jail from 06.10.2015 till 24.02.2016. Therefore, the Court was of the opinion that the defendant's counsel should have moved an application for issuance of production warrants and since same was not moved the case was adjourned for DE for 31.05.2016 subject to further cost of M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 5 of 9 Rs.5,000/-. On 11.05.2016, file was again taken up on an application filed by the defendant for Page 24 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined issuance of production warrants and accordingly production warrants were issued in the name of SSP concerned for 31.05.2016. On 31.05.2016, the counsel for the plaintiff as well as counsel for the defendant appeared and one Ct. Jitender appeared from the Jaipur Jail who filed some written clarifications sought from (though it should be by) concerned Jail Superintendent whether defendant is on bail in the said matter or not and the Hon'ble court found the said clarification baseless and directed against Jail Superintendent to produce the defendant and the matter was adjourned for 08.06.2016. On 08.06.2016, in view of the circular of the Hon'ble High Court, matter was sent back to the Ld. District Judge to transfer the case to the Hon'ble High Court. Thereafter, on 10.08.2016, the matter was again sent to the Ld. ADJ and then matter was listed for 22.08.2016. On 22.08.2016, the Court fixed the case for DE for 09.09.16. On 09.09.2016, proxy counsel for the defendant has appeared and filed an application for issuance of production warrants. The Court observed that it is incline to issue production warrants provided proper affidavit filed either by plaintiff or his counsel that defendant is actually happened to be in jail till date along with particular of the case and that he has not been released from jail and court adjourned the matter for 04.11.2016. On 04.11.2016, only plaintiff Page 25 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined counsel has appeared but M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 6 of 9 none appeared on behalf of defendant, hence after noting down the previous proceedings, 4 DE was closed and case was listed for final arguments for 07.11.2016. On 07.11.2016, the case was fixed for clarifications for 08.11.2016 and on 08.11.2016 judgment was passed. xxx
11. Since technically on 04.11.2016 defendant was not proceeded ex parte hence in technical sense the judgment cannot be said as an ex parte judgment but actually this is an ex parte judgment as for all practical purpose defendant has been proceeded ex parte on 04.11.2016 when his DE was closed in his absence. Hence I consider the judgment dated 08.11.2016 as ex parte judgment. Therefore, in my view application U/o 9 Rule 13 CPC filed by the defendant is maintainable.
12. Now coming to the merits. From the aforesaid order sheets, it is evident that the fact of defendant being in JC was intimated by the defendant's counsel on 22.04.2016 and in fact thereafter Ld. Predecessor has issued the production warrants on 11.05.2016 for production of the defendant from the jail. But he was not produced by the Jail Superintendent from Jaipur jail and court has again directed to produce him for 08.06.2016. But in between matter was transferred to the Hon'ble High Court and then again transferred to Page 26 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023 NEUTRAL CITATION C/SCA/3880/2023 ORDER DATED: 24/03/2023 undefined the District Court for 09.09.2016. On 09.09.2016, my Ld. Predecessor was not sure that accused is in JC therefore she has asked for the affidavit of the counsel for the defendant regarding the defendant being still in JC on 09.09.2016 and apparently same was not furnished when the case was listed on 04.11.2016. In fact some proxy counsel appeared on behalf of applicant/ defendant on that day to apprise the status of defendant whether he was in JC or not, due to which court closed the DE. As M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 8 of 9 averred by the defendant, he was in JC and only released from jail on 06.05.2017. This fact has not been contradicted by the applicant/ plaintiff. Therefore in my view there was no fault for his nonappearance for leading DE or not filing the list of witnesses as same was beyond his control. The record shows that some proxy counsel might be appearing on his behalf but when a person remains in jail and that too in Jaipur jail it become very difficult to give instructions to his counsel on each and every date. Even the counsel also become lethargic as he might not be getting his fees therefore even proxy counsel was not appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice."
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17. Thereupon, the respondent preferred a miscellaneous petition under Article 227 of the Constitution of India, which vide the th impugned order dated 4 July 2019 has been allowed primarily for the reason that the counsel for the appellant had applied and taken certified copy of the judgment dated 8th November 2016 in December, 2016 which shows that the appellant was represented by his counsel even at that stage. The contention of the appellant that he acquired knowledge of the decree only after his release from th custody on 6 May 2017 was wrong. In view of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant."
5.7 Therefore, this Court cannot exercise the powers under Article 227 of the Constitution of India and the impugned judgment is otherwise found just and proper. Therefore, on all counts, the present petition is required to be dismissed.
6. In view of aforesaid observations, the present petition is dismissed.
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7. This Court feels that now-a-days, this has become an emerging trend to file such litigation with some ulterior motive by abusing process of law and this Court has taken serious note of this conduct of the present petitioner and this is a fit case where the Court could have imposed the heavy cost on the petitioner but considering the peculiar facts and circumstance of this case, this Court is not imposing any cost, and therefore, no cost.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 29 of 29 Downloaded on : Sun Sep 17 22:58:57 IST 2023