Gujarat High Court
Nirmil Jitendrabhai Shah vs Karan Devendra Rabari on 17 March, 2023
C/SCA/23985/2022 ORDER DATED: 17/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23985 of 2022
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NIRMIL JITENDRABHAI SHAH
Versus
KARAN DEVENDRA RABARI
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MR D C SEJPAL(1322) for the Respondent(s) No. 2
MR KISHAN R CHAKWAWALA(9846) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 17/03/2023
ORAL ORDER
1. Heard learned advocate Ms. Jayini D. Thakore appearing for learned advocate Mr. Dipen Desai for the petitioner, learned advocate Mr. Kishan R. Chakwawala for the respondent No.1 and learned advocate Mr. D.C. Sejpal for the newly added respondent No.2.
2. The present petition is filed by the petitioner by being aggrieved and dissatisfied with the impugned judgment and order dated 23.08.2022 passed by learned nd 2 Additional Senior Civil Judge, Sanand below Exh.22 in Special Civil Suit No.31 of 2022, whereby the application for impleading Niyati Nirmil Shah as defendant No.2, is filed, which is rejected by learned Page 1 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 trial Court.
3.1 Brief facts of the case are as such that the petitioner is in search of appropriate property in the city. The petitioner came across a scheme namely Glade-One at Sanand, Ahmedabad, which was being developed by one of the most prominent developers of Ahmedabad. It is the case of the petitioner, after visiting the site in person, found the same to suit his requirements and accordingly, the petitioner on 03.08.2018 by virtue of a Registered Sale Deed bearing No.9336 purchased an immovable property bearing unit No.W67 admeasuring 200.29 sq. meters constructed upon a plot admeasuring 1215 sq. meters forming part of land bearing survey No.1065/3P, 1065/7 and 1065/2 in Village Modasar, Taluka Sanand, Registration District Ahmedabad for a sale consideration of Rs.1,02,72,400/. The petitioner has also submitted that a share certificate bearing No.448 also came to be issued to the petitioner by the society. It is the case of the petitioner that the wife of the petitioner namely Niyati Nirmil Shah whose maiden name was Neha Shah, whom the petitioner had married in 1996 and who had mothered two children namely Page 2 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 Malaika born in 1999 and Sahir born in 2002 with the petitioner, was suffering from acute psychological disorder, more particularly, known as Dis-social Personality Disorder which disabled her from acting rationally since 2004. On account of the aforementioned disorder, she took actions and decisions which were completely and utterly unacceptable and did not suit any social standard or norms.
3.2 It is the case of the petitioner that the petitioner has received a call from the administrative team of Glade One who inquired why the name of the opponent- accused-original accused person was being reflected in the revenue record of the said property more particularly in Village form No.7 and 12. The petitioner firstly thought it must be an error but, upon enquiry he found that name is mutated in village form where the petitioner has never made any application for mutating the revenue record for his own sale and had never entered into any transaction of sale for the said Property in favor of any entity or individual whatsoever.
3.3 Thereafter, the petitioner has also found that the notice issued under Section 135D of the Bombay Land Page 3 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 Revenue Code is served to some fictitious person named Nilim Shah residing at Chanakyapura which is not the address of the petitioner, and therefore, without service of notice under Section 135D of the Bombay Land Revenue Code, name was changed in favour of the accused in the revenue record. This is the substance of the case of the petitioner, and therefore, the petitioner has preferred Special Civil Suit No.31 of 2022 before the learned Civil Court, Sanand, inter alia, seeking a declaration that the petitioner is the absolute owner and occupier of the immovable property bearing unit No.W67 admeasuring 200.69 Sq. Meters constructed upon plot admeasuring 1215 Sq. Meters forming part of land bearing survey No.1065/3P, 1065/7 and 1065/2 in village Modasar, Taluka: Sanand, Registration District:
Ahmdabad.
3.4 The petitioner - plaintiff has also prayed for a declaration that the power of attorney dated 13.11.2018 does not confer right, title or interest in connection with the suit property and a declaration that the power of attorney and all acts performed on the basis of the power of attorney, are fraudulent, without authority of Page 4 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 law, and it is illegal and void. The petitioner - plaintiff has prayed to set asaid the sale deed dated 13.12.2018, which is executed in connection with the suit property and for a further declaration that the said sale deed execution in favour of the defendant is fraudulent, illegal and non est in the eyes of law.
3.5 In addition to preferring the suit, the petitioner also filed an application seeking injunction and appointment of court commissioner, and the learned Trial Court by virtue of its order dated 20.04.2022 was pleased to not grant any ex parte injunction to the petitioner. 3.6 Thereafter, some further developments have taken place and certain documents are also placed on the record, pursuant to the subject matter of the property, it is say of the petitioner that the learned Trial Court has passed the order by directing both the parties to maintain status quo for the property in question by order dated 27.04.2022. In the said order, the learned trial Court has observed that the petitioner has not joined his wife - Niyati Nirmil Shah as defendant No.2 who is necessary party to the suit and on that ground, Page 5 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 the trial Court did not grant mandatory injunction but directed the parties to maintain status quo. 3.7 The said order dated 27.04.2022 is challenged before this Court by way of Appeal from Order No.107 of 2022, which is pending. It is case of the petitioner that the petitioner vide application below Exh.22 has made application to join wife of the petitioner as defendant No.2 and learned trial Court has rejected the said application at Exh.22 by order dated 23.03.2022 and therefore, the present petition is preferred. 4.1 Learned advocate Ms. Jayini D. Thakore appearing for learned advocate Mr. Dipen Desai for the petitioner has submitted that considering the application, which is filed at Exh.22 and considering the provisions of Order I Rule 10 of the Code of Civil Procedure, 1908 and also considering the settled position of law, the plaintiff is dominus litus, and the impugned order passed by the learned trial Court is ex facie bad in the eyes of law.
4.2 She has drawn my attention towards the earlier order passed below Exh.12, whereby while dealing with Page 6 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 Exh.12 application, the Court has directed to maintain status quo and has observed that Niyati Nirmil Shah, who is wife of the petitioner and wife of the attorney holder, is not joined though the wife seems to be necessary party to this suit, and therefore, she has submitted that the same Court cannot now find that Niyati Nirmil Shah is sought to be impleaded as a party defendant in the suit.
4.3 She has submitted that considering the averments made in the application and considering the earlier finding of the learned trial Court, the requirement of Order I Rule 10 is satisfied, and therefore, it is the duty of the Court to grant permission to implead Niyati Nirmil Shah - defendant No.2 as party.
4.4 She has relied upon the judgment of the Hon'ble Apex Court in the case of Robin Ramjibhai Patel Versus Anandibai Rama reported in 2018 (15) SCC 614, whereby in paras 8 & 10, it is found that the Court has accepted the status of dominus litus and in para 10, it is observed that "When the plaintiff wants to implead certain persons as a defendants on the ground that they Page 7 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors." 4.5 She has further relied upon the judgment of the Hon'ble Apex Court in the case of Kasturi Versus Lyyamperumal reported in 2005 (6) SCC 733, and has submitted that in view of the said judgment, wherein the provisions of Order I Rule 10 of the Code of Civil Procedure, 1908 is considered by the Hon'ble Apex Court and after considering the same, the Court has found that the persons, sough to be added in the suit, were necessary or proper party to be added as party defendants in the said suit instituted by the plaintiff - appellant, and therefore, she has prayed that the present petition is required to be allowed by quashing and setting aside the impugned judgment and order. 5.1 Per contra, learned advocate Mr. Kishan R. Chakwawala for the respondent No.1 has strongly objected and has submitted that the application filed by Page 8 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 the present petitioner, is totally misconceived as in the application, nowhere it is stated that how the proposed defendant is necessary and proper party. 5.2 He has also argued that such conduct of the plaintiff creates impression before the learned trial Court that plaintiff has suppressed the material facts from the Court, and thereafter, when the Court has found that the plaintiff has not impleaded as necessary party below Exh.12 order, the present application is filed and that is also without making necessary averment in the application.
5.3 He has further submitted that plaintiff and proposed defendant No.2 is husband and wife, and therefore, there is collusion between them, and therefore also, the plaintiff has not come with clean hands before the Court. 5.3 He has further submitted that the application should be considered as barred by latches and acquiescence. He has drawn my attention towards the pleadings made in the plaint whereby as per his submission, the plaintiff averred in the plaint by making Page 9 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 averment against the proposed defendant No.2 on the line of ifs and buts and no definite averment or allegation made against proposed defendant No.2 nor any prayer is sought against the defendant, and therefore, he has submitted that the learned trial Court has rightly rejected the application filed by the present petitioner, otherwise, it would amount to miscarriage of justice.
6. Learned advocate Mr. D.C. Sejpal appearing for the proposed respondent No.2. - Niyati Nirmil Shah has submitted that he has filed affidavit-in-reply by putting his case to the extent that without admitting any of the statements and averments made either by the petitioner or by any of the parties, he has no objection, if the Court wants to add Niyati Nirmil Shah - defendant No.2 in the proceedings.
7. It is relevant to note that this Court has issued notice to Niyati Nirmil Shah as proposed respondent No.2 by order dated 03.03.2023.
8.1 Considering the documentary evidence as well as pleadings of the parties available on the record, it clearly Page 10 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 transpires that the proposed respondent No.2 is wife of the present petitioner and also alleged power of attorney holder. Moreover, while deciding the application at Exh.12 by the learned trial Court, the Court has found in para 3 that "... And at present it is also an undisputed fact that plaintiff has not joined his wife as a party to the suit. By way of the present suit, the plaintiff has challenged and denied the power of attorney as well as the sale deed regarding the suit property. However, plaintiff has not joined his wife who seems to be necessary party to this suit..." This order dated is passed by the learned trial Court on 27.04.2022. It seems that application at Exh.22 is filed by the plaintiff whereby the Court has considered the rival submissions and application of the plaintiff and has given the findings which are more particularly recorded in para 4 for consideration, which reads as under:-
"4. The plaintiff submits as under:
a. The Honourable Court be pleased to implead Niyati Nirmil Shah as defendant no. 2 in the present proceedings;
Page 11 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 b. The Honourable Court be pleased to permit the plaintiff to amend the cause title of the plaint and application for injunction in order to reflect the details of defendant no. 2 as under:
(i) Defendant no. 2
Niyati Nirmil Shah
Age: Adult
Occupation: Housewife
Residing at 27, Capri Building
9 Manav Mandir Road
Off Nepean Sea Road
Mumbai-400006
Maharashtra
c. Such other and further reliefs as may be deemed fit and appropriate be granted in the interest of justice;"
8.2. From the reasoning recorded in para 4, it clearly transpires that though the Court has earlier expressed that the proposed defendant No.2 - Niyati Nirmil Shah is necessary party, somehow, while deciding this application, the Court has taken totally different view by holding that she is not necessary party nor proper party and the application is rejected by awarding the cost of Page 12 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 Rs.1,000/- and this, in my view, totally perverse finding as the earlier observation made in order passed below Exh.12 is available on the record and not only that, it also reflect from the pleadings of the parties that such observation is made by the Court while deciding that application and it is observed that the proposed defendant No.2 is necessary party, and therefore, it is strange that such contradictory finding is given by the learned trial Court which is based on only assumption and not in accordance with law.
8.3 Moreover, considering the Order I Rule 10 of the Code of Civil Procedure, 1980, which reads as under:
"Order I Rule 10:-
Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as 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 through 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.
Page 13 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 (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 joined, 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 1 [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.
Page 14 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023 C/SCA/23985/2022 ORDER DATED: 17/03/2023 10A. Power of Court to request any pleader to address it.--The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader."
And also considering the judgments cited at the Bar, it is well settled provisions of law that the plaintiff is dominus litus and plaintiff can add any party at any stage of the suit proceedings with the permission of the Court, in the present case, when the Court itself found while deciding one of the applications that the proposed defendant No.2 is a necessary party, I found no reason to reject such application at Exh.22, which is squarely covered by the provision of Order I Rule 10 read with Section 151 of the Civil Procedure Code, and therefore, the present petition deserves to be allowed by exercising my powers conferred under Article 227 of the Constitution of India as the findings of the learned trial Court is contrary to the materials available on the record and also by misappreciating the provisions of law. Page 15 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023
C/SCA/23985/2022 ORDER DATED: 17/03/2023
9. The present petition is allowed accordingly.
10. The impugned judgment and order dated 23.08.2022 nd passed by learned 2 Additional Senior Civil Judge, Sanand below Exh.22 in Special Civil Suit No.31 of 2022 is quashed and set aside.
11 The plaintiff shall implead the defendant No.2 - respondent No.2 herein as a defendant No.2 in the suit proceedings by amending the plaint.
12. With the above observation, the present petition is disposed of.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 16 of 16 Downloaded on : Mon Mar 20 20:41:59 IST 2023