Gujarat High Court
Kishorbhai Khanchand Gohil & Anr vs Manubhai Prabhudas Patel & Ors on 7 August, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/4467/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4467 of 2014
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KISHORBHAI KHANCHAND GOHIL & ANR. ....Petitioners Versus MANUBHAI PRABHUDAS PATEL & ORS. ....Respondents ========================================================== Appearance:
MR. K.V. SHELAT, ADVOCATE for the Petitioners MR. TATTVAM K. PATEL, ADVOCATE for the Respondents ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 07/08/2015 CAV ORDER
1. Challenge in this petition is made to the orders passed by the Principal Senior Civil Judge, Ahmedabad (Rural) dated 21.06.2013 below applications Exh.167, 172 and 173 in Special Civil Suit No.93 of 1999.
2. Learned advocate for the petitioners has submitted that the suit in question i.e. Special Civil Suit No.93 of 1999 was filed for declaration and permanent injunction by the present petitioners, on the strength of the power given by the original land owners and they i.e. the original land owners, fraudulently settled the dispute with the defendants, behind the back of the present petitioners and therefore the Court below should have permitted the present petitioners to join as the plaintiffs in the suit, and further that the suit ought not to have been permitted to be withdrawn by the original plaintiffs. Learned advocate for Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Aug 08 02:32:57 IST 2015 C/SCA/4467/2014 CAV ORDER the petitioners has also taken this Court through the proceedings of Special Civil Suit No.216 of 2003 and the further proceedings in that regard including the First Appeal No.81 of 2010 before this Court and SLP (Civil) No.21694 of 2010 before Honourable the Supreme Court of India. It is submitted that on the face of these orders, the Trial Court should have permitted the present petitioners to step in as the plaintiffs of the suit in question and having not permitted the same, ultimately injustice is caused to the petitioners. It is submitted that, this petition be entertained. Learned advocate for the petitioners has also relied on the decisions of Hon'ble the Supreme Court of India in the case Badami (Deceased) by Her LR vs. Bhali reported in (2012) 11 SCC 574 and in the case of Sumtibai and others vs. Paras Finance Co. reported in (2007) 10 SCC 82.
3. On the other hand, Mr.Patel, learned advocate for the respondents - original plaintiffs has also relied on very same material, which the learned advocate for the petitioners has relied on, however to contend that there was ingenuine attempt on the part of the present petitioners to obstruct the proceedings of the suit in question to the detriment the original plaintiffs and therefore the Trial Court has rightly not permitted the same, at the hands of the present petitioners and therefore this petition be dismissed. Learned advocate for the respondents has relied on the decision of this Court in the case of Patel Dineshbhai Mohanbhai Vs. Decd. Naranbhai Ramdas Thro' Legal Heirs reported in 2005 (1) G.L.H. 505.
4. Having heard learned advocates for the respective Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Aug 08 02:32:57 IST 2015 C/SCA/4467/2014 CAV ORDER parties and having gone through the material on record, this Court finds as under.
4.1 The present petitioners claimed that there was an agreement to sale dated 09.09.1997 in their favour, of the suit land. At that time, even power of attorney was given by the original land owners. On the strength of the said power, Civil Suit No.93 of 1999 was filed by the original land owners through the power of attorneys i.e. the present petitioners. In the said suit, the plaintiffs had prayed for certain reliefs against the defendants qua the same piece of land.
4.2 During the pendency of the said suit, on 30.05.2003 the original land owners - the plaintiffs revoked the power of attorney executed in favour of the present petitioners. Despite that, the said power of attorneys i.e. the present petitioners continue to pursue the suit in question and therefore the original plaintiffs gave an application Exh.101 that the cause title of the suit be amended by deleting the name of the power of attorneys. The said application was rejected by the Trial Court vide order dated 11.09.2003.
4.3 The said order was challenged by the original land owners - the plaintiffs before this Court by filing petition being Special Civil Application No.16056 of 2003. From record, it transpires that, the said petition was registered on 14.10.2003. The said petition is ultimately allowed by this Court vide judgment dated 09.12.2011.
4.4 As the consequences of the filing of the above petition on Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Aug 08 02:32:57 IST 2015 C/SCA/4467/2014 CAV ORDER 14.10.2003, the said Power of Attorney filed Special Civil Suit No.216 of 2003 joining the original land owners as party defendants, for specific performance of the agreement to sale dated 09.09.1997. The said suit was by the present petitioners themselves standing as plaintiffs. In the said proceedings the present petitioners have lost, right upto Hon'ble the Supreme Court of India.
4.5 In the said suit, the Trial Court framed various issues and on each issue, the finding is recorded against the plaintiffs - the present petitioners. The suit was dismissed by the judgment dated 31.12.2009. The same was challenged before this Court by way of filing Appeal being First Appeal No.81 of 2010. The Division Bench of this Court, while dismissing the said Appeal, vide judgment and order dated 23.3.2010, rejected the case of the plaintiffs - the present petitioners, qua the suit land, on merits. The same was challenged before Honourable the Supreme Court of India and the said SLP (Civil) No.21694 of 2010 is also dismissed vide order dated 13.09.2010. Thus, the present petitioners did not have any right to ask for specific performance of the agreement to sale in their favour and it has attained finality.
4.6 Independently, the petition filed by the original land owners being Special Civil Application No.16056 of 2003 came to be allowed by judgment dated 09.12.2011 and that is how the name of the present petitioners were ordered to be deleted from the cause title of the Special Civil Suit No.93 of 1999.
4.7 Thereafter the present petitioners gave an application on Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Aug 08 02:32:57 IST 2015 C/SCA/4467/2014 CAV ORDER 24.09.2012 to the Trial Court vide Exh.167 to permit them to join as plaintiffs in the said suit.
4.8 As against that, the original plaintiffs gave application Exh.173 requesting the Trial Court to remove the name of the present petitioners as Power of Attorney and show the name of the original plaintiffs as the plaintiffs on their own. This was to give effect to the judgment of this Court dated 09.12.2011 noted above.
4.9 The original plaintiffs gave one more application (Exh.172) seeking leave of the Trial Court to withdraw the suit, since the dispute was resolved out of the Court with the defendants.
4.10 The application given by the present petitioners to step in as the plaintiffs is rejected by the Trial Court by the impugned order dated 21.06.2013. Other two applications i.e. Exh.172 and 173 filed by the original plaintiffs are allowed by the Trial Court.
4.11 In the chronology of the facts and findings noted above, this Court finds that, when the right of the present petitioners were already crystallized qua the suit land in the Civil Suit No.216 of 2003, which was filed in their personal capacity, that too vis-a-vis the plaintiffs of Special Civil Suit No.93 of 1999, the petitioners could not be permitted to sabotage the proceedings of Special Civil Suit No.93 of 1999 standing as Power of Attorney, against the say of the original plaintiffs. The Court below has not committed any error by not Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 08 02:32:57 IST 2015 C/SCA/4467/2014 CAV ORDER permitting the present petitioners to step in as plaintiffs in the said suit. Further, in view of the judgment of this Court in Special Civil Application No.16056 of 2003, the Trial Court could not have passed any other order.
4.12 The Court below has not committed any error by permitting the original plaintiffs to stand as plaintiffs without the aid of Power of Attorney vide order dated 21.06.2013 recorded on application Exh.173. As noted above, in view of the judgment of this Court in Special Civil Application No.16056 of 2003, even on this point, the Trial Court could not have passed any other order.
4.13 On the face of above, the original plaintiffs could not have been restrained from withdrawing the suit unconditionally. The Court below has thus not committed any error by permitting the original plaintiffs to withdraw the suit unconditionally.
4.14 In view of above, no interference is required in any of the three impugned orders. So far the decisions relied by learned advocate for the petitioners are concerned, there can not be any dispute with regard to proposition of law enunciated therein, however in the facts noted above, the same would not take the case of the petitioners any further. This petition, therefore needs to be dismissed.
5. For the reasons recorded above, this petition is dismissed.
(PARESH UPADHYAY, J.)
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