Gujarat High Court
Jayesh Enterprise And Ors. vs Fakirchand Champaklal Shah And Ors. on 25 April, 1995
Equivalent citations: (1996)1GLR790
JUDGMENT J.N. Bhatt, J.
1. In this revision under Section 115 of the Code of Civil Procedure, 1908 (Code), the petitioners (third parties) have questioned the order passed below Exh. 137 on 20-7-1994 in Special Civil Suit No. 101 of 1989 recorded by the learned Fourth Joint Civil Judge (S.D.), Surat.
2. The opponent No. 1 herein instituted aforesaid Civil suit for specific perfornance of the contract on 8th February 1989 inter alia contending that opponent No. 1 had entered into an oral agreement with the original defendants on 7th July 1987 by paying an amount of Rs. 25,000/- for purchase of suit property and that the original defendants failed to perform the terms and conditions of the agreement. The suit for specific performance of the said agreement was required to be filed.
3. The petitioner No. 1 herein is a Registered Partnership Firm and other petitioner Nos. 2 to 5 are its partners. According to the petitioners' case, they have also entered into an agreement for sale in respect of the same property like that of the suit property on 21st January 1989. The agreement was executed by one Narsinhbhai Patel for sale of Survey No. 348 admeasuring 1,720 sq. metres (suit property) in favour of one Mr. K.T. Desai and Jayaben Dalwadi. The said agreement came to be registered on 24th January 1989. After the death of said Narsinhbhai Patel, the executant of the agreement to sell on 29th August 1991 the right, title and interest in the aforesaid agreement of sale were assigned in presence of the petitioners and the said assignment of deed came to be registered on 19th January, 1990.
4. The petitioners also instituted a Special Civil Suit No. 512 of 1991 in the Court of Civil Judge (S.D.), Surat, seeking relief of specific performane of the said agreement to sell, which is pending. The first suit being Special Civil Suit No. 101 of 1989 is passed on the oral agreement to sell between the parties. According to the case of the petitioners, it is a collusive suit between the plaintiffs and the defendants. Apprehending the risk of suit being decreed by collusion the petitioners submitted an application, Exh. 137 in the first suit, namely Special Civil Suit No. 101, of 1989 to join them as parties in the said suit on 16th January 1992. After hearing the parties, the learned trial Court Judge rejected the said application, Exh. 137 by passing order on 27th January 1994. Hence, this revision under Section 115 of the Code.
5. Though the jurisdictional sweep of this Court under Section 115 of the Code is very much circumscribed, this Court is inclined to interfere with the impugned order passed below Exh. 137 by the trial Court, as the impugned order is not only unreasonable and unjust, but is perverse in the light of the peculiar and special facts of the case. When the same property is the subject-matter in both the suits, and the plaintiffs, who have filed subsequent suit on the basis of a document for the relief of specific performance of the said agreement to sell, ordinarily cannot be denied to be impleaded as parties in the four more suits having the same subject-matter for the same relief of the specific performance of the agreement which is oral as such and that too when they apprehend collusive decree between the plaintiffs and defendants in the first suit. It appears, this aspect was not placed in the proper focus before the learned trial Court Judge. Therefore, the learned trial Court Judge rejected the application of the present petitioners who are the third parties in the first suit and are vitally interested in the result of the first suit as the subject- matter in the first suit is the same in the subsequent suits wherein the petitioners are the plaintiffs. In order to obviate the complications, legal implications and with a view to see that the real justice is done between the parties, in relation to the same subject-matter and in respect of the same relief prayed in both the suits, ordinarily it is not the right of a third party to clain to be impleaded as a party in a suit against the wish and will of the plaintiffs. However, this general principle of law under Order 1, Rule 10 of the Code, has certain exceptions like one emerging in a case on hand. Ultimately, the main anxiety of the Courts in such a situation should be to see that the substantial and real justice is done between the parties when they are agitating their grievances in respect of the same subject-matter for the same relief in two suits. Therefore, making a departure from the usual and common practice while exercising the powers of this Court under Order 1, Rule 10 of the Code, this Court finds an exceptional case wherein the petitioners who are the third parties who submitted an application, Exh. 137 for being impleaded as party in the first suit were vitally interested as they were assigned right, title and interest in the agreement to sell in respect of the immovable property which is the subject-matter of both the suits. Under the circumstances, this Court finds that the impugned order of the learned trial Court Judge is bad in law as it has entailed failure of justice. With the result, this petition is required to be allowed. Accordingly, it is allowed.
However, since both the suits have common subject-matter and similar reliefs sought for, it would be desirable and expedient to direct the trial Court to consolidate both the suits, namely, Special Civil Suit No. 101 of 1989 and Special Civil Suit No. 512 of 1991 and try them jointly. Accordingly, the trial Court is directed to consolidate Special Civil Suit Nos. 101 of 1989 and 512 of 1991 and try them jointly in accordance with law after giving opportunities to the parties.
6. In the result, this revision application is allowed. However, there shall be no order as to costs. Rule is made absolute.