Gujarat High Court
Dilipbhai Jagjivandas Shah vs Rameshbhai Somabhai Patel on 11 March, 2024
NEUTRAL CITATION
C/SCA/10757/2014 ORDER DATED: 11/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10757 of 2014
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DILIPBHAI JAGJIVANDAS SHAH
Versus
RAMESHBHAI SOMABHAI PATEL & ORS.
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1,9
DELETED for the Respondent(s) No. 10
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2,3,5
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 2,3,5
NOTICE SERVED for the Respondent(s) No. 4
VIRAL K SHAH(5210) for the Respondent(s) No. 6,7
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/03/2024
ORAL ORDER
1. The present petition is filed praying for the following reliefs:
"(A) YOUR LORDSHIPS be pleased to admit and allow this petition, in the interest of justice;
(B) YOUR LORDSHIPS be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dtd. 5.7.2014 passed by Ld. 9th Addl. Senior Civil Judge, Surat on application below Exh.
18 in Special Civil Suit No. 196 of 2011 and further be pleased to grant the application Exh.18, as prayed for, in the interest of justice;
(C) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dtd. 5.7.2014 passed by Ld. 9th Addl. Senior Civil Judge, Surat on Page 1 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024 NEUTRAL CITATION C/SCA/10757/2014 ORDER DATED: 11/03/2024 undefined application below Exh. 18 in Special Civil Suit No.196 of 2011, pending the admission hearing and final disposal of this petition;
(D) YOUR LORDSHIPS be pleased to direct that the subject land may not be transferred, sold, alienated, etc., pending the admission hearing and final disposal of this petition;
(E) YOUR LORDSHIPS be pleased to award the cost of this petition, to the petitioner, in the interest of justice;
(F) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed proper by this Hon'ble Court"
2. Heard learned advocate Ms. Archana Acharya for the petitioner, learned advocate Mr. S.P.Majmudar for respondent Nos.2, 3 and 5 and learned advocate Mr. Jay Dakwala appearing for learned advocate Mr. Viral K. Shah for the respondent Nos.6 and 7.
3. Learned advocate Ms. Archana Acharya has strongly relied on the fact that the application is essentially filed under the head of amendment in the pleadings. She has submitted that during the pendency of the suit proceedings, the lis pendens is registered and thereafter, sale deed is executed in favour of the newly added party who has purchased the property in question. Learned advocate Ms. Acharya has further submitted that considering the fact that amendment can be granted at any stage of trial and considering the fact that during the pendency of the suit proceedings further transfer is executed, the impugned judgment Page 2 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024 NEUTRAL CITATION C/SCA/10757/2014 ORDER DATED: 11/03/2024 undefined which is otherwise erroneous is required to be interfered with by exercising power under Article 227 and by quashing impugned order.
4. Per contra, learned advocate Mr. S.P.Majmudar appearing for respondent Nos.2, 3 and 5, contended that the present petition is filed without impleading the proposed parties who are subsequent purchasers and without hearing them, no effective order can be passed by this Court. He has further submitted that the composite application filed under Order VI Rule 17 read with Order I Rule 10 is not maintainable. He has also drawn my attention towards the fact that by way of application, the present petitioner is trying to amend the plaint by making necessary averments in the application and in view of the subsequent development, the petitioner is also seeking to add the parties who are subsequent purchaser, which is required to be filed under Order I Rule 10 and therefore, he has submitted that the present application is composite application filed under the provisions of Order VI Rule 17 and Order I Rule 10 which is not maintainable in the eyes of law. He has relied on the judgment dated 16.10.2023 passed in Special Civil Application No.1846 of 2018 by the coordinate Bench, whereby, it has considered the scope of the composite application and discussed in detail in paras 7, 8 and 9, which are relevant for consideration.
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5. Learned advocate Mr. Jay Dakwala appearing for learned advocate Mr. Viral K. Shah for the respondent Nos.6 and 7 has also submitted that the petitioner has failed to indicate that which 20% of the portion is having possession and there is a huge parcel of land which is the subject matter of the suit and in absence of specific averment regarding the possession of the 20% property, no such prayer as sought in the present application can be granted, otherwise also, transaction in question is much prior to the institution of the suit which is ultimately given the effect by way of registered sale deed after filing of the suit, therefore, it cannot be said that the sale transaction is subsequent to the suit.
6. I have considered the rival submissions made at the Bar and also considered the fact that the application is admittedly after registering the lis pendens before the concerned Court and sale deed which is also executed is much after the filing of the present suit and during the pendency of suit. Considering the fact that the application in question which is filed for the purpose of seeking amendment in the plaint, such composite application is essentially seeking prayers under two provisions of the Civil Procedure Code, one is Order I Rule 10 and the other is Order VI Rule 17, which are read as under:
Order I Rule 10 :
10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as Page 4 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024 NEUTRAL CITATION C/SCA/10757/2014 ORDER DATED: 11/03/2024 undefined plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted throught a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may 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, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joinded, whether as plaintiff or defendant, or 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, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.-- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant (5) Subject to the provisions of the 2 Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
Order VI Rule 17:
17. Amendment of pleadings.--The Court may at any Page 5 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024 NEUTRAL CITATION C/SCA/10757/2014 ORDER DATED: 11/03/2024 undefined stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
6.1 Without expressing any opinion that whether the finding of the trial Court and reasoning given by the trial Court is sustainable in the eyes of law, first we have to consider whether such composite application filed essentially under the provisions of Order VI Rule 17 and Order I Rule 10, though it is labelled as application for amendment is maintainable in the eyes of law ? It is needless to say that the coordinate Bench has already dealt with the similar situation and paras 7, 8 and 9 of the judgment dated 16.10.2023 rendered in S.C.A.No.1846 of 2018, clearly speak that why such application is not maintainable in eyes of law.
Therefore, considering the judgment of the Coordinate Bench, it is almost arising from the similar set of facts and circumstances, whereby, the Court has observed that such application is not maintainable in eyes of law. Considering this aspect, without deliberating on the merits of the impugned order, since the application itself is not maintainable in the eyes of law, no Page 6 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024 NEUTRAL CITATION C/SCA/10757/2014 ORDER DATED: 11/03/2024 undefined interference is called for as the trial Court has not committed any error in the decision taken pursuant to such application and the petition is required to be dismissed and accordingly, the petition is dismissed. No order as to costs. Notice is discharged.
7. Though, it is labelled as application under Order VI Rule 17 but while going through the averments in the application, the application is essentially filed under both the provisions i.e. Order I Rule 10 as well as Order VI Rule 17 and it is now well settled proposition of law that contents are material and label is not material.
8. It is needless to say that the petitioner is at liberty to avail appropriate remedy available under the law including the subject matter of the present application, if it is permissible. It is open for the parties to make necessary request before the concerned Court to expedite the proceedings, which the trial Court shall consider in accordance with law.
(SANDEEP N. BHATT,J) SLOCK BAROT Page 7 of 7 Downloaded on : Wed Mar 13 20:41:04 IST 2024