Gujarat High Court
Patel Chaturbhai Shambhudas And Anr. vs State Of Gujarat And Anr. on 4 April, 1995
Equivalent citations: AIR1996GUJ40, AIR 1996 GUJARAT 40
ORDER
1. The petitioners have challenged the order passed below Exh. 8 in Regular Civil Suit No. 249 of 1988 passed on 28-12-1988 by the learned 2nd Joint Civil Judge (S.D.) at Mehsana allowing the application of third party-respondent No. 2 -- Manager of Dashnami Goswami Samaj for joining as co-defendant in the said suit, by filing this revision under Section 115 of the Code of Civil Procedure, 1908 ('the Code' for short).
2. The petitioners have filed the aforesaid suit for a declaration that they are owners of land bearing survey number 4 situated in village Chanasama, District Mehsana which is populary known as Sudama Wadi wherein temples of Mahadcv and Mataji are situated on the suit land. The case of the plaintiffs is that they are in the charge of the management of the temples and one room constructed on the suit land is used by the Pujari as residence. There are also some superstructures in some part of the suit land. There are also Samadhis of the ancestors of the plaintiffs situated on the part of the said land.
3. It is also one of the contentions of the plaintiffs that the suit land and the properties standing thereon are maintained and repaired by the plaintiffs. Thus, according to the plaintiffs, they are in use and occupation of the said land and the superstructures thereon as owners since long. Therefore, they filed the above suit for declaration and injunction.
4. During the pendency of the said suit, respondent No. 2 preferred an application Ex. 8 for being joined as party on the defendant-side inter alia contending that he is in use and enjoyment of the suit land and the superstructures thereon. It is the case of the applicant that the suit land has many Samadhis of the ancestors of the applicant and the members of the community are visiting Samadhis for Seva-puja and for worship. Respondent No. 2 filed the application under Order 1, Rule 10(2) of the Code for and on behalf of Dashnami Goswami Samaj inter alia contending that the Samaj and its members have legal right to use and enjoy the property as of right. The applicant also claimed possession and ownership in respect of the suit land and the superstructures thereon. The right claimed by the applicant was challenged by the plaintiffs. The plaintiffs did not want to implead the applicant as co-defendant. The original defendant is the State of Gujarat and the applicant desired to be impleaded as defendant No. 2. However, the plaintiff strongly resisted the application under O. 1,R. 10(2) at Ex. 8.
5. After hearing the parties and considering the facts and circumstances the trial Court granted the application. Respondent No 2-original applicant Bava Parshottambharti, Manager of the Dashnami Goswami Samaj was permitted to be joined as necessary party to the suit and the trial Court directed the plaintiffs to make necessary amendment in the plaint by passing an order on 28-12-1988. Being aggrieved by the said order, the original plaintiffs have now challenged its legality and validity by filing this revision application under Section 115 of the Code.
6. The jurisdictional sweep of the revisional Court under Section 115 is very much circumscribed. However, the Court finds that this impugned order is perverse and has resulted into miscarriage of justice, the Court would rightly exercise its powers under Section 115 to put it in a proper and legal shape. Having regard to the facts and circumstances emerging from the record of the case and the relevant proposition of law, the impugned order passed below Ex. 8 in Regular Civil Suit No. 249 of 1988 passed by the trial Court cannot be said to be unjust, unreasonable, perverse or illegal requiring interference of this Court. It is necessary to mention that the present applicant cliams to be in possession and occupation of the disputed land and the super-structures thereon. There is no dispute about the fact that there are Samadhis on the suit land. The contention of the applicant is that members of Dashnami Goswami Samaj are visiting and worshipping Samadhis of their ancestors since long and they have legal right to do it and they are in use and occupation of the disputed land since long. The short history of litigation may be traced at this stage which would support the impugned order passed by the trial Court. City survey had taken place and the suit land was shown in the name of Government-respondent No. 1, Therefore, the petitioners-original plaintiffs had filed the proceedings before the Revenue Authorities in respect of the suit land. The plaintiffs had applied for Sanad before the Deputy Collector. However, on inquiry, the Deputy Collector, Mehsana by passing an order on 11-2-1971 in CTS inquiry No. 48/70 declared the disputed land of the ownership of the plaintiffs. Accordingly, he directed that mutation should be carried out in the city survey record and Sanad should be issued to the plaintiffs.
7. Being aggrieved by the said order of the Deputy Collector, respondent No. 2 original applicant preferred an Appeal No. 25 of 1984 before the District Collector, Mehsana challenging the legality and validity of the said order of the Deputy Collector and claiming ownership. However, the appeal was decided against the applicant on 30-6-1986. Being aggrieved by the said order of the Collector, the applicant preferred a revision before the Government being No. 289 of 1986 which was heard and decided by the Special Secretary (Appeals) on 9-12-1987 and he quashed and set aside the orders of the Deputy Collector and the Collector. He, however, directed that the disputed land should be entered in the revenue record as Government land. This is precisely the reason why the plaintiffs are constrained to initiate the legal battle in the Court by filing the above suit but joining only the State of Gujarat as the defendant without joining the applicant-respondent No. 2. Therefore, the applicant who claims to be the owner and occupant of the suit land preferred an application, Ex. 8 on 3-10-1988 in the trial Court and prayed for being impleaded as defendant No. 2 stating various grounds in support of the application.
8. After examining the facts and circumstances and hearing the parties, the trial Court granted the application and passed the impugned order directing the plaintiffs to implead the applicant as defendant No. 2 in the suit. Order 1, Rule 10(2) of Code empowers the Court to strike out or add parties 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, whether as plaintiff or defendant 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.
9. It is settled proposition of law that ordinarily, the Court should not direct the plaintiff to join a third party in exercise of its powers under Order 1, Rule 10(2) against the will of the plaintiff. Thus, plaintiff ordinarily should not be compelled to file a suit against such third party and to amend the plaint. However, the word 'may' in Sub-rule (2) of Rule 10 of the Order 1 empowers discretion and while exercising discretion, the Court is obliged to consider all relevant facts and circumstances including the wish and will of the plaintiff while passing the order under Order 1, Rule 10(2). Only in exceptional cases like the one on hand, where the Court finds that addition of new defendant is absolutely required to enable the Court to effectually and completely adjudicate upon the matter in controversy between the parties, it will add a person as a defendant even against the opposition of the plaintiff.
10. As can be seen from the facts drawn hereinbefore the alleged legals claim of the plaintiffs is founded on a decision for which the applicant-defendant No. 2 is responsible as it was he who had moved the Authority claiming ownership and occupation of the disputed land by raising various grounds. Apart from the fact whether the applicant has ownership right or not, it is an admitted fact that there are Samadhis on certain parts of the disputed land and the members of the Dashnami Goswami Samaj for which the applicant has filed the application under Order 1, Rule 10(2) are visiting and worshipping the Samadhis. Thus, the contention of the applicant is that the Samaj has been in occupation of the suit land. Of course, he is also claiming ownership right. By his claiming ownership and occupancy right in the suit land, the Samaj as such cannot be said to be disinterested or unconcerned in a suit filed by the plaintiffs who are also claiming the same right in a suit joining only the State of Gujarat as defendant. In view of the above special facts from the point of view of public interest and of avoiding multiplicity of proceedings, such a dispute where two parties are claiming ownership and occupancy rights, should be allowed to thrash out their rights in one litigation. In the factual scenario emerging from the record of the case, it cannot be said that the trial Court has exceeded its jurisdiction or has failed to exercise the jurisdiction vested in it or has committed any illegality or perversity requiring interference of this Court.
11. Reliance is placed by the learned advocate for the petitioners on a decision of this Court in Ambalal Maganlal Rawal v. Vaghri Bababhai Shivabhai in Civil Revision Application No. 514 of 1972 decided on 9-4-1974 (Coram: J.M. Sheth, J.) (1974) IX GLT 215). For full facts and text, the whole judgment of this Court was examined. The principle laid down in the said decision is not in dispute. In that case, the suit was for redemption of mortgage and the third party was claiming his ownership through another person over the suit Wada, who was found to be not a necessary party. Therefore, that decision is not applicable to the facts of the present case.
12. Second decision of this Court in Noormohmed v. Anand Mohan, (1981) 22 Guj LR 332 : (AIR 1981 Guj 132) is also relied upon. In that case, the question was whether the allottee should be added as defendant under Order 1, Rule 10(2) in a dispute between the plaintiff and the Government. It was held that in the circumstances, the allottee cannot be said to be a necessary party to effectually and completely adjudicate the dispute. So is not the case before us. Any suit filed by the plaintiffs for declaration and possession will have direct impact and ramification on the right, title and interest claimed by the applicant. Therefore, it cannot be said that the applicant is disinterested and not a necessary party in the present case. Therefore, the said decision is also of no avail to the petitioner.
13. The learned advocate for the petitioners has also relied on the decision of the Supreme Court in Ramesh v. Municipal Corporation of Greater Bombay, 1992 AIR SCW 846. In that case, a suit was relating to property. Party to be added was not found to have direct interest in the disputed property. The suit was filed by licensee of premises challenging demolition notice issued by the Municipal Corporation as regards two chatties put by him. The licensor of the premises was having no interest in chatties. Therefore, it was observed and found by the Honourable Supreme Court that addition of party under Order 1, Rule 10(2) was not called for as the applicant was not a necessary or proper party. Such a person cannot be added on a mere ground that he has in his possession relevant evidence; whereas in the present case, the applicant is the creator of the litigation who got the impugned order passed by the Deputy Collector and confirmed by the Collector, Mehsana in favour of the plaintiffs, reversed and who is claiming to be the owner and occupant of the disputed property more so, when it is an admitted fact that there are many Samadhis in the suit land and superstructures and room meant for Pujari. The claim of the applicant is that ancestor of Goswami Samaj devotees were cremated and whose Samadhis are created in part of the suit land, and therefore, members of the community and families are visiting and worshipping such Samadhis. Under the circumstances, it cannot be said even for a moment that the applicant who has brought the application for and on behalf of Dashnami Goswami Samaj has no any interest and is not a necessary party.
14. Similarly, reliance placed by the learned advocate for the petitioners on the Division Bench decision of the Bombay High Court in Virbhadrappa v. Shekabai, (1939) 41 Bom LR 249 : (AIR 1939 Bombay 188) is not also helpful to them. No doubt, the principle laid down therein is very clear and not in question. On the contrary, it is stated in the said decision that power of the civil Court under Order 1, Rule 10 are very wide enough to add party to a suit or proceeding. A creditor of a deceased-Mahomedan can himself institute a suit against some of the heirs of the deceased in possession of his property to recover the debt and succeed only to the extent of the share of the debtor's heirs who are parties to the action. It was, therefore, found by the Bombay High Court that applicant cannot be said to be a necessary party without whose presence the issue cannot be effectually and completely adjudicated upon between the parties in the suit.
15. Having regard to the facts and circumstances narrated hereinabove and the aforesaid case law and in the light of the provisions of Order 1, Rule 10(2), this Court is satisfied that the impunged order passed by the trial Court is fully justified. With the result, this petition is without any merit and substance and is required to be dismissed. Accordingly, it is dismissed. Rule discharged. There shall be no order as to costs.