Gujarat High Court
Harshit Indravadan Talati vs Legal Heirs Of Ambalal Patel Huf on 28 March, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/18816/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18816 of 2017
With
F/APPEAL FROM ORDER NO. 492 of 2016
(Converted as R/Appeal from Order No. 74 of 2018)
With
CIVIL APPLICATION NO. 1 of 2016
(Civil Application - For Condonation of Delay
(Old - Stamp) No. 15225 of 2016)
With
CIVIL APPLICATION NO. 1 of 2017
(Civil Application - For Leave to Appeal (Old) No.587 of 2017)
With
CIVIL APPLICATION NO. 2 of 2016
(Civil Application - For Stay (Old - Stamp) No. 15226 of 2016)
In
F/APPEAL FROM ORDER NO. 492 of 2016
(Converted as R/Appeal from Order No. 74 of 2018)
With
F/APPEAL FROM ORDER NO. 493 of 2016
(Converted as R/Appeal from Order No. 75 of 2018)
With
CIVIL APPLICATION NO. 1 of 2016
(Civil Application - For Condonation of Delay
(Old - Stamp) No. 15232 of 2016)
With
CIVIL APPLICATION NO. 1 of 2017
(Civil Application - For Leave to Appeal (Old) No.1376 of 2017)
With
CIVIL APPLICATION NO. 2 of 2016
(Civil Application - For Stay (Old - Stamp) No. 15233 of 2016)
In
F/APPEAL FROM ORDER NO. 493 of 2016
(Converted as R/Appeal from Order No. 75 of 2018)
Page 1 of 51
C/SCA/18816/2017 CAV ORDER
With
F/APPEAL FROM ORDER NO. 494 of 2016
(Converted as R/Appeal from Order No. 76 of 2018)
With
CIVIL APPLICATION NO. 1 of 2016
(Civil Application - For Condonation of Delay
(Old - Stamp) No. 15242 of 2016)
With
CIVIL APPLICATION NO. 1 of 2017
(Civil Application - For Leave to Appeal (Old) No.1375 of 2017)
With
CIVIL APPLICATION NO. 2 of 2016
(Civil Application - For Stay (Old - Stamp) No. 15243 of 2016)
In
F/APPEAL FROM ORDER NO. 494 of 2016
(Converted as R/Appeal from Order No. 76 of 2018)
With
R/APPEAL FROM ORDER NO. 372 of 2016
With
CIVIL APPLICATION NO. 1 of 2016
(Civil Application (For Stay) (Old) No.9840 of 2016)
IN
R/APPEAL FROM ORDER NO. 372 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14958 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 14959 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 14960 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 14961 of 2015
With
Page 2 of 51
C/SCA/18816/2017 CAV ORDER
R/SPECIAL CIVIL APPLICATION NO. 7744 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7745 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7746 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7747 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7748 of 2016
==========================================================
GAYATRINAGAR CO-OPERATIVE HOUSING SOCIETY LTD. & ORS. ...Petitioners/ ...Appellants/ ...Applicants Versus KANTILAL AMBALAL PATEL -
(SINCE DECEASED) THROUGH LEGAL HEIRS AND ORS. ...Respondents ========================================================== Appearance :
Special Civil Application No.18816 of 2017 :
MS MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Petitioners MR NIRAV C THAKKAR, ADVOCATE for the (Contesting) Respondents No. 1.1,1.2,1.3 MR MEHUL S. SHAH, SENIOR ADVOCATE with MR JENIL M SHAH for the Respondent No. 1.4 MR ANAL S SHAH for the Respondents No. 2 & 3 Civil Application No.587 of 2017 With Appeal from Order (Stamp) No. 492 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MR RUSHABH H SHAH, ADVOCATE for the Applicant Page 3 of 51 C/SCA/18816/2017 CAV ORDER MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, CAVEATOR for the Respondent No.1 MR ASIM J PANDYA, ADVOCATE for the respondent No.6 Civil Application No.1376 of 2017 With Appeal from Order (Stamp) No. 493 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MR RUSHABH H SHAH, ADVOCATE for the Applicant MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, CAVEATOR for the Respondent No.1 MR ASIM J PANDYA, ADVOCATE for the respondent No.6 Civil Application No.1375 of 2017 With Appeal from Order (Stamp) No. 494 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MR RUSHABH H SHAH, ADVOCATE for the Applicant MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, CAVEATOR for the Respondent No.1 MR ASIM J PANDYA, ADVOCATE for the respondent No.6 Appeal from Order No.372 of 2016 With Civil Application No.9840 of 2016 : MR JAL UNWALA, ADVOCATE with MS TEJAL A VASHI, ADVOCATE for the Appellants MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA ACHARYA, ADVOCATE for the Respondents No.1 to 5 MR ANAL S SHAH, ADVOCATE for the Respondents No. 6 & 7 MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M. SHAH, ADVOCATE for the Respondent No.9 SPECIAL CIVIL APPLICATIONS NO.14958 TO 14961 OF 2015 : Page 4 of 51
C/SCA/18816/2017 CAV ORDER MR ANSHIN DESAI, SENIOR ADVOCATE with MR RUSHABH H SHAH, ADVOCATE for the Applicant MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, CAVEATOR for the Respondent No.1 MR ANAL S SHAH, ADVOCATE MR TARAK DAMANI, ADVOCATE MS NIKITA S BAROT, ADVOCATE MR MEHUL S. SHAH, SENIOR ADVOCATE with MR VISHAL C MEHTA, ADVOCATE MR UNMESH SHUKLA, ADVOCATE for MS SHASHVATA U SHUKLA, ADVOCATE SPECIAL CIVIL APPLICATION NO. 7744 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MS VENU NANAVATY, ADVOCATE for MR MOHMEDSAIF HAKIM, ADVOCATE for the Petitioner MR SHALIN MEHTA, SENIOR ADVOCATE with MR.PARTH CONTRACTOR, ADVOCATE for the Respondent No. 1.3 MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the Respondent No. 1.4 MR ANAL S SHAH, ADVOCATE for the Respondents No. 2 3 MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Respondents No. 4 8 Respondents No. 1.1 1.2 are served. SPECIAL CIVIL APPLICATION NO. 7745 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MS VENU NANAVATY, ADVOCATE for MR MOHMEDSAIF HAKIM, ADVOCATE for the Petitioner MR SHALIN MEHTA, SENIOR ADVOCATE with MR.PARTH CONTRACTOR, ADVOCATE for the Respondent No. 1.3 Page 5 of 51 C/SCA/18816/2017 CAV ORDER MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the Respondent No. 1.4 MR ANAL S SHAH, ADVOCATE for the Respondents No. 2 3 MR TARAK DAMANI, ADVOCATE for the Respondents No. 4 MR NIKITA S BAROT, ADVOCATE for the Respondents No. 5 MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Respondents No. 6 Respondents No. 1.1 1.2 are served. SPECIAL CIVIL APPLICATION NO. 7746 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MS VENU NANAVATY, ADVOCATE for MR MOHMEDSAIF HAKIM, ADVOCATE for the Petitioner MR SHALIN MEHTA, SENIOR ADVOCATE with MR.PARTH CONTRACTOR, ADVOCATE for the Respondent No. 1.3 MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the Respondent No. 1.4 MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Respondents No. 2-6 Respondents No. 1.1 1.2 are served. SPECIAL CIVIL APPLICATION NO. 7747 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MS VENU NANAVATY, ADVOCATE for MR MOHMEDSAIF HAKIM, ADVOCATE for the Petitioner MR SHALIN MEHTA, SENIOR ADVOCATE with MR.PARTH CONTRACTOR, ADVOCATE for the Respondent No. 1.3 MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the Respondent No. 1.4 MR ANAL S SHAH, ADVOCATE for the Respondents No. 2 3 MR TARAK DAMANI, ADVOCATE for the Respondents No. 4 Page 6 of 51 C/SCA/18816/2017 CAV ORDER MR NIKITA S BAROT, ADVOCATE for the Respondents No. 5 MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Respondents No. 6 Respondents No. 1.1 1.2 are served. SPECIAL CIVIL APPLICATION NO. 7748 of 2016 : MR ANSHIN DESAI, SENIOR ADVOCATE with MS VENU NANAVATY, ADVOCATE for MR MOHMEDSAIF HAKIM, ADVOCATE for the Petitioner MR SHALIN MEHTA, SENIOR ADVOCATE with MR.PARTH CONTRACTOR, ADVOCATE for the Respondent No. 1.3 MR MEHUL S SHAH, SENIOR ADVOCATE with MR JENIL M SHAH, ADVOCATE for the Respondent No. 1.4 MR ANAL S SHAH, ADVOCATE for the Respondents No. 2 3 MR NIKITA S BAROT, ADVOCATE for the Respondents No. 5 MR MIHIR JOSHI, SENIOR ADVOCATE with MS ARCHANA R ACHARYA, ADVOCATE for the Respondents No. 6 Respondents No. 1.1 1.2, 4 are served. ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 28/03/2018 CAV ORDER
1. Challenge in this group of Petitions / Appeals is made by the contesting parties to the different orders passed by the Trial Court, the details of which are noted in para 4.1 to 4.14.
The subject matter of all the proceedings before the Trial Court, from which these matters have arisen before this Court, is the same parcels of land. All the impugned orders are either inter-connected or has bearing on the other matters and in any Page 7 of 51 C/SCA/18816/2017 CAV ORDER case, they are arising from the dispute between the contesting parties relating to the same parcels of land and therefore all these matters are considered and decided by this common order.
2. Before the details of the impugned orders are noted, following facts need to be kept in view to understand the background in which each of the impugned orders came to be passed. These facts are as under.
2.1 In the year of 1984 or so, Gayatrinagar Co-operative Housing Society Limited was formed. Five different societies having similar name, with some variation (name of some group) were formed. They are Gayatrinagar Co-operative Housing Society Limited (i) Parla Group (ii) Valkeshwar Group
(iii) Balasinor Group (iv) Alkapuri Group and (v) Khetvadi Group. The difference in the name of these societies does not change the controversy on hand and therefore further details in that regard are not elaborated. The entire parcels of land are divided in these Societies but when it comes to suit land, the reference is common. For brevity, all these Societies would be referred to as 'Society' in this order.
2.2 The formation of these societies and / or initial dealings of land - purchase / transfer of name thereof, development of / construction on the land / for the Society etc. was either at the instance of or by one builder named Kantilal Ambalal Patel. For brevity, said Kantilal Ambalal Patel would be referred to as 'Kantilal' in this order.
2.3 In the later part of this order, there is reference to two Page 8 of 51 C/SCA/18816/2017 CAV ORDER more persons. They are - 'Jalaram Land Developers' and 'Harshit Indravadan Talati'. For brevity, they would be referred to as 'Jalaram' and 'Talati', respectively, in this order.
2.4 On the said parcel of land, till date, effectively no development has taken place and whose right it is - to develop the said land - on that point itself multiple litigations are going on before the Trial Court. Not only qua the development of the suit land, there are claims and counter - claims qua even the ownership / title / interest / possession over the suit land. The contesting claims on these aspects are between Society, Kantilal, Jalaram and Talati. There is also serious dispute as to who in fact represents the society. Is it the Society or some un- authorized element with the mask of one Mr. Divyang Jha who is running the show - on that point also detailed submissions are made.
3.1 The above claims and counter - claims are grouped in the following proceedings before the Trial Court (Senior Civil Judge
- Vadodara).
3.2 Kantilal claimed that there was an agreement by the Society to sell the suit land to him, for which a suit for specific performance was filed by Kantilal being Special Civil Suit No. 149 of 2005. The said suit was decreed on the basis of the compromise between the parties. Consent decree was drawn by the Trial Court on 30.04.2005. This led to change of title in favour of Kantilal, through five different registered sale deeds. The said five sale deeds and the consent decree, are challenged by the Society before the Trial Court by different substantive proceedings being Special Civil Suit Nos. 473 of Page 9 of 51 C/SCA/18816/2017 CAV ORDER 2013, 528 of 2013, 548 of 2013, 549 of 2013 & 553 of 2013, and Miscellaneous Civil Application No. 149 of 2013. In the said proceedings, the Society has joined Kantilal (and his family members / legal heirs) as party respondents / defendants.
3.3 Independent of the above, Jalaram and Talati claim right / title / interest and possession over the suit land. Jalaram claims that there was a development agreement in his favour by Kantilal qua the suit land. For this purpose Jalaram filed a suit being Special Civil Suit No. 749 of 2011 for specific performance against Kantilal.
3.4 Talati claims that there was an agreement to sell (the suit land), in his favour by Kantilal. For this purpose a suit for specific performance being Special Civil Suit No. 523 of 2014 is filed by Talati against Kantilal.
3.5 In the above referred suit of Jalaram, over and above Kantilal, the Society is also joined as party defendant by plaintiff - Jalaram. Therefore there was no application by the Society to join as party defendant, however in the above referred suit of Talati, the Society was not joined as party defendant by Talati and therefore, an application is made by the Society, to join it as a party defendant in the suit filed by Talati. In the suits / proceedings by the Society, Kantilal is party but neither Jalaram nor Talati is party defendant and therefore both gave applications to be joined as party defendants. As noted above, the Society is already party in the Suit of Jalaram, further the application given by the Society to join as party in the suit of Talati is allowed by the Trial Court. However, at the same time, applications given by Jalaram and Page 10 of 51 C/SCA/18816/2017 CAV ORDER Talati to join as party respondents / defendants in the proceedings initiated by the Society qua the very same suit land are rejected by the Trial Court. This has given rise to different matters before this Court. Jalaram has challenged the rejection of its application by the Trial Court to join as respondent in the proceedings instituted by the Society. Talati has also filed a petition before this Court challenging the order of the Trial Court permitting Society to join as respondent in his (Talati's) suit, and has also challenged the rejection of its applications by the Trial Court for being joined as party respondent in the proceedings instituted by the Society.
3.6 By the time, all the above happened, Trial Court granted injunction in favour of the Society and against the defendants (effectively against Kantilal) by different orders. One of such orders is challenged by Kantilal. Other orders are not challenged by Kantilal. The said orders are therefore challenged by Jalaram. For this purpose Jalaram has filed Civil Applications seeking leave of this Court to challenge those orders since Jalaram was not party to the suit (since its applications for joining as party respondent were already rejected earlier, as referred above).
3.7 By the time all the above happened, an additional affidavit of examination - in - chief by the Society in Civil Misc. Application No. 149 of 2013 is rejected by the Trial Court, which is challenged by the Society before this Court.
3.8 The details of the orders passed by the Trial Court which are impugned before this Court in this group of petitions / appeals are as under.
Page 11 of 51C/SCA/18816/2017 CAV ORDER 4.1 Challenge in Special Civil Application 14959 of 2015 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 19. The said application was filed by Jalaram Land Developers. It was for joining him as a party defendant in Civil Miscellaneous Application 149 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Jalaram Land Developers in this petition.
4.2 Challenge in Special Civil Application 7744 of 2016 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 57. The said application was filed by Talati. It was for joining him as a party defendant in Civil Miscellaneous Application 149 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Talati in this petition.
4.3 Challenge in Special Civil Application 14958 of 2015 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 24. The said application was filed by Jalaram Land Developers. It was for joining him as a party defendant in Special Civil Suit No. 473 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Jalaram Land Developers in this petition.
4.4 Challenge in Special Civil Application 7747 of 2016 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 58. The said application was filed by Talati. It was for joining him as a party Page 12 of 51 C/SCA/18816/2017 CAV ORDER defendant in Special Civil Suit No. 473 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Talati in this petition.
4.5 Challenge in Special Civil Application 14961 of 2015 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 26. The said application was filed by Jalaram Land Developers. It was for joining him as a party defendant in Special Civil Suit No. 528 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Jalaram Land Developers in this petition.
4.6 Challenge in Special Civil Application 7745 of 2016 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 49. The said application was filed by Talati. It was for joining him as a party defendant in Special Civil Suit No. 528 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Talati in this petition.
4.7 Challenge in Special Civil Application 14960 of 2015 is made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 18. The said application was filed by Jalaram Land Developers. It was for joining him as a party defendant in Special Civil Suit No. 548 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Jalaram Land Developers in this petition.
4.8 Challenge in Special Civil Application 7748 of 2016 is Page 13 of 51 C/SCA/18816/2017 CAV ORDER made to the order dated 19.08.2015 by 16th Additional Senior Civil Judge, Vadodara, below application Exh. 49. The said application was filed by Talati. It was for joining him as a party defendant in Special Civil Suit No. 548 of 2013. The said application came to be rejected by the Trial Court, which is challenged by Talati in this petition.
4.9 Challenge in Special Civil Application 7746 of 2016 is made to the order dated 27.10.2015 by 15th Additional Senior Civil Judge, Vadodara, below application Exh. 17. The said application was filed by the Society. It was for joining the Society as a party defendant in Special Civil Suit No. 523 of 2014. The said application came to be allowed by the Trial Court, which is challenged by Talati in this petition.
4.10 Challenge in Appeal from Order No. 372 of 2016 is made to the order dated 21.06.2016 by 15th Additional Senior Civil Judge, Vadodara, below application Exh. 8A. The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Kantilal Patel in this Appeal from Order.
4.11 Challenge in Appeal from order (stamp number) 492 of 2016 is made to the order dated 28.07.2016 by 15th Additional Senior Civil Judge, Vadodara, below injunction application Exh. 5 & 22 in Special Civil Suit No. 473 of 2013. The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered appeal from order. Since the application of Jalaram Land Developers for being joined as party defendant is already Page 14 of 51 C/SCA/18816/2017 CAV ORDER rejected by the Trail Court, Civil Applications being 587 of 2017 is filed in seeking leave of this Court to appeal.
4.12 Challenge in Appeal from order (stamp number) 493 of 2016 is made to the order dated 22.08.2016 by 15th Additional Senior Civil Judge, Vadodara, below injunction application Exh. 5 & 20 in Special Civil Suit No. 548 of 2013. The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered appeal from order. Since the application of Jalaram Land Developers for being joined as party defendant is already rejected by the Trail Court, Civil Applications being 1376 of 2017 is filed in seeking leave of this Court to appeal.
4.13 Challenge in Appeal from order (stamp number) 494 of 2016 is made to the order dated 22.08.2016 by 15th Additional Senior Civil Judge, Vadodara, below injunction application Exh. 5 & 15 in Special Civil Suit No. 528 of 2013. The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered appeal from order. Since the application of Jalaram Land Developers for being joined as party defendant is already rejected by the Trail Court, Civil Applications being 1375 of 2017 is filed in seeking leave of this Court to appeal.
4.14 Challenge in Special Civil Application 18816 of 2017 is made to the order dated 12.09.17 by 13 th Additional Senior Civil Judge, Vadodara, below application Exh. 1. The said application was filed by the Society. It was for taking additional Page 15 of 51 C/SCA/18816/2017 CAV ORDER affidavit of examination-in-chief on record in Civil Miscellaneous Application No. 149 of 2013. The said application came to be rejected by the Trial Court, which is challenged by the Society in this petition.
5.1 Learned advocates for the contesting parties have addressed the Court at length.
5.2 Mr. Mihir Joshi, learned senior advocate with Ms. Archana Acharya, learned advocate has appeared on behalf of the Society.
5.3 On behalf of Kantilal different learned advocates have appeared in different matters. Mr. Shalin Mehta, learned senior advocate with Mr. Parth Contractor, learned advocate has appeared in one group. Mr. Unmesh Shukla, Mr. Jal Unwala, and Mr. Nirav Thakkar, learned advocates have also appeared in different matters. There is no interse conflict in their arguments. They contest the stand of the Society. Some of the respondents, who were sailing with Kantilal are represented through different learned advocates, whose appearances are noted above.
5.4 Mr. Mehul S. Shah, learned senior advocate with Mr. Jenil M. Shah, learned advocate has appeared on behalf of Mr. Miraj Patel, who is the grand-son of Kantilal. He is supporting the case of the Society.
6.1 It is noted that all the learned advocates have addressed the Court at length. They have extensively taken this Court through the paper-book, which runs into hundreds of pages.
Page 16 of 51C/SCA/18816/2017 CAV ORDER Though learned advocates for the respective parties have extensively addressed the Court on merits of the matter, since the proceedings are large open before the Trial Court, and the disputes which are to be addressed by this Court in this group of petitions are, principally with regard to joining of parties, taking additional affidavit on record and passing of injunction orders by the Trial Court without hearing the parties, the arguments are noted only to the extent necessary for deciding those issues.
6.2 So far Appeal from Order No.372 of 2016 is concerned, challenge therein is to one of the injunction orders, on merits, but, in view of final order which is being passed by this Court, the arguments of learned advocate for the appellant of Appeal from Order No.372 of 2016 is noted (in the later part of this order) only to the extent necessary.
6.3 Apart from the above, there is one off-shoot which is the subject matter of Special Civil Application No.18816 of 2017, qua which the submissions are noted herebelow.
7.1 So far Special Civil Application No.18816 of 2017 is concerned, it is arising from Civil Misc. Application No.149 of 2013 in which the Society has prayed for setting aside the consent decree passed in Special Civil Suit No. 149 of 2005 dated 30.04.2005. After production of affidavit of one Mr. Divyang Jha, (as the Examination-in-Chief of the plaintiff), certain objections were raised by the defendants, which led to putting on record an additional affidavit of Mr. Divyang Jha for the plaintiff on behalf of the Society, which is rejected by the Trial Court vide order dated 12.09.2017.
Page 17 of 51C/SCA/18816/2017 CAV ORDER 7.2 Mr. Mihir Joshi, learned senior advocate for the petitioner Society has taken this Court through the pleadings on record and the reasons recorded by the Trial Court and has contended that, not only the Trial Court fell in error by not permitting the additional affidavit being taken on record, the reasons recorded by the Trial Court in the impugned order, in substance, results in dismissal of the suit. It is further submitted that there is no material progress in the said proceedings and in any case, a stage has not come, where production of additional affidavit on behalf of the plaintiff would, in any way, prejudice the case of the defendants. It is submitted that, the impugned order dated 12.09.2017 is illegal and the same needs to be interfered with.
7.3 Mr. Nirav Thakkar, learned advocate for the respondents
- original defendants (Kantilal) has contested this petition. It is submitted that the Court below has not committed any error and no interference be made by this Court. It is submitted that this petition be dismissed.
8. So far Appeal from Order No.372 of 2016 is concerned, as already noted above, the arguments of the said matter are noted separately in the later part of this common order.
9.1 So far rest of the matters i.e. Special Civil Application Nos. 14958 to 14961 of 2015 and Special Civil Application Nos. 7744 to 7748 of 2016 are concerned, the dispute in all the matters, principally is with regard to joining as parties by Talati and Jalaram in the suits filed by the Society, and vice-versa.
Page 18 of 51C/SCA/18816/2017 CAV ORDER 9.2 Mr. Mihir Joshi, learned senior advocate for the Society has submitted that, so far the proceedings instituted by Jalaram and Talati are concerned, they pertain to the very suit land, which is the subject matter of the proceedings instituted by the Society and if any order is passed in the proceedings of Jalaram and Talati, the Society will not be able to enjoy the fruits of the decree, that may be passed in favour of the Society in the proceedings instituted by it (the Society). It is submitted that under these circumstances, the Society is required to be heard in the proceedings instituted by Jalaram and Talati and therefore the Trial Court has not committed any error by permitting the Society to be joined as party respondent in the Special Civil Suit No.523 of 2014. It is submitted that the challenge to the said order (order of the Trial Court dated 27.10.2015 below Exh.17 in Special Civil Suit No.523 of 2014), in Special Civil Application 7746 of 2016 by Talati, needs to be rejected.
9.3 Mr. Joshi, learned senior advocate for the Society, while contending that Special Civil Application No.7746 of 2016 as noted above needs to be dismissed, has, at the same breath further submitted that, neither Talati nor Jalaram needs to be heard in the proceedings instituted by the Society. It is submitted that for this reason, the challenge to the orders passed by the Trial Court, whereby the applications of the Jalaram and Talati for being joined as party defendants are rejected, need not be interfered with. It is submitted that, the documents which are relied by Jalaram and Talati, if are taken into consideration, it does not inspire confidence. It is submitted that those parties can not be said to have even prima facie case. It is submitted that they need not be heard in Page 19 of 51 C/SCA/18816/2017 CAV ORDER the matters. It is submitted that the Trial Court has not committed any error by not entertaining their applications for being joined as party in the proceedings instituted by the Society.
9.4 Mr. Joshi, learned senior advocate for the Society has also addressed the Court at length with regard to the de-merits in the case of Jalaram and Talati both. It is further submitted that, there is connivance between Kantilal and Jalaram on one hand, and between Kantilal and Talati on the other hand, and both against the Society. It is submitted that the attempt on the part of the Jalaram and Talati to be joined as party is to prolong the proceedings and therefore the same be rejected.
9.5 Mr. Joshi, learned senior advocate for the Society, while contending that neither Talati nor Jalaram needs to be heard in the proceedings instituted by the Society, has further submitted that for that reason the applications filed by Jalaram seeking leave of this Court to file Appeals against the orders of the Trial Court granting injunction in favour of the Society also need to be dismissed.
9.6 Mr. Joshi, learned senior advocate has cited following authorities in support of his submissions.
1. Rasiklal Shankerlal Soni V. Natvarlal Shankerlal Upadhyay, reported in AIR 1975 Guj 178.
2. Firm of Mahadev Rice and Oil Mills V. Chennimalai Goundar, reported in AIR 1968 Madras 287.
3. Banarasi Das Durga Prasad V. Panna Lal Ram Richpal Oswal, reported in AIR 1969 Punjab and Page 20 of 51 C/SCA/18816/2017 CAV ORDER Haryana 57.
4. Arjan Singh V. Kartar Singh, reported in AIR 1975 Punjab and Haryana 184.
5. Vidur Impax and Traders Pvt Ltd V. Tosh Apartments Pvt. Ltd., reported in AIR 2012 SC 2925.
6. Fukan Ahmad V. Sayed Ahmed Raza, reported in AIR 1995 Allahabad 337.
7. Sarvinder Singh V. Dilip Singh, reported in (1996) SCC 539.
8. Firm of Mahadeva Rice and Oil Mills V. Chennimalai Goundar reported in AIR 1968 MADRAS 287.
9. Razia Begum V. Sahebzadi Anwar Begum reported in AIR 1958 Supreme Court 886.
10. Kasturi V. Iyyamperumal reported in (2005) 6 SCC
733.
11. Arjan Singh V. Kartar Singh reported in AIR 1975 Punjab and Haryana 184.
12. Mumbai International Airport Private Limited V. Regency Convention Centre and Hotels Private Limited reported in (2010) 7 SCC 417.
13. Ajmera Housing Corporation V. Amrit M. Patel (dead) through Legal Heirs reported in AIR 1998 Supreme Court 2542.
14. Sarvinder Singh V. Dalip Singh reported in (1996) 5 SCC 539.
10.1 Mr. Anshin Desai, learned senior advocate for the petitioners of Special Civil Applications No. 14958 to 14961 of 2015, & Appeals from Orders (Stamp Number) 492 to 494 of 2016 (by Jalaram) and of Special Civil Applications No. 7744 to 7748 of 2016 (by Talati), has vehemently submitted that, the Page 21 of 51 C/SCA/18816/2017 CAV ORDER Trial Court fell in error by rejecting the applications of Jalaram and Talati. It is submitted that, if the Society was required to be heard in the proceedings of Talati and Jalaram, how Jalaram and Talati are not required to be heard in the proceedings of the Society. It is submitted that in all the proceedings, the suit land is the same. It is submitted that no prejudice would be caused to the Society if Jalaram and Talati are joined as party defendants in the proceedings of the Society but if Jalaram and Talati are not permitted in the proceedings of the Society, the same would lead to irreversible situation for Jalaram and Talati.
10.2 Mr. Anshin Desai, learned senior advocate has made serious grievance that there is outright connivance of the group of Kantilal and the Society to frustrate the claims of Jalaram and Talati both. For this reason, he has taken this Court extensively through the paper book and has submitted that, the grand-son of Kantilal, stands, out and out with the Society. It is submitted that whatever little share the said grand-son of Kantilal would have in the properties of Kantilal, would flow from Kantilal only and if Kantilal is to loose, he (the grand son), in no way, can succeed. It is submitted that, not walking along with Kantilal is one thing and to take a stand out and out against his own grand father - Kantilal and in favour of the Society is no less than poaching by the Society. It is further submitted that, though two sets of restrain orders are passed by the Trial Court qua the suit land against Kantilal (and his legal heirs), challenge is made to only one restrain order by filing Appeal from Order No.372 of 2016. It is submitted that the time gap between the two sets of restrain orders is only about one month, then under what circumstances, one restrain order is challenged by Kantilal but the second set is not. It is Page 22 of 51 C/SCA/18816/2017 CAV ORDER contended that, for this reason also, leave as prayed for to file Appeals to challenge those restrain orders may please be granted to Jalaram, as prayed for by it.
10.3 Mr. Desai, learned senior advocate, during the course of arguments has drawn the attention of this Court to very unusual aspect of the matter. It is submitted that the restrain orders by the Trial Court are in favour of the Society and against all the defendants, starting from Kantilal. The interest of Kantilal and his associates can not be on different sides. Kantilal has already challenged one restrain order (dated 21.06.2016), but has not challenged the second batch of three identical restrain orders (one order dated 28.07.2016 and two more orders dated 22.08.2016). It is submitted that a party against whom an order is passed may or may not challenge that order but the said party would certainly not support the said order. It is submitted that the second batch of restrain orders is not only not challenged, but caveat applications are filed before this Court by some of the Associates of Kantilal. Reference in this regard is made to caveat applications filed before this Court who all were sailing with Kantilal. Those caveat applications were filed in Appeals from Orders (Stamp) No. 492 to 494 of 2016, the details of which are noted in the later part of this order. It is submitted that, this is abuse of process of law and the matters need consideration from that angle as well.
10.4 Mr. Anshin Desai, learned senior advocate has also made further grievance that the entire machinery is hostile against Kantilal and in favour of the Society. It is submitted that though representation is claimed to have been made on Page 23 of 51 C/SCA/18816/2017 CAV ORDER behalf of the Society, as such there is only one element (Mr. Divyang Jha), who is appearing as Power of Attorney of some so-called member, who has instituted all the proceedings criminal / civil suits, etc. It is submitted that with little more probe against said Mr. Divyang Jha, many skeletons would come out. Learned senior advocate has also taken this Court through the various documents which are sworn by said Mr. Divyang Jha, which are on record and has submitted that, it has direct bearing on the mischief played in this group of matters. During the course of hearing, Mr. Anshin Desai, learned senior advocate has also taken this Court extensively through the criminal proceedings pertaining to the very suit land.
10.5 Mr. Desai, learned senior advocate has made serious grievance that though the subject matter before the Trial Court was only, as to whether the application filed by Jalaram and Talati should be allowed or not, the Trial Court has passed the orders on the said applications, in such a manner that the objections that could have been taken by any defendants in those suits against Society are rejected by the Trial Court and the issues which are yet to be framed by the Trial Court, are answered in favour of the Society. In this regard, learned senior advocate has further taken this Court through the findings recorded by the Trial Court. It is submitted that for all these reasons, the orders whereby the applications filed by Jalaram and Talati for being joined as party defendants are rejected, need to be interfered with.
10.6 It is submitted that the date of the orders passed by the Trial Court rejecting the above referred applications of Page 24 of 51 C/SCA/18816/2017 CAV ORDER Talati and Jalaram in the suits of the Society is 19.08.2015 and thereafter, the injunction orders came to be passed by the Trial Court in those suits. It is submitted that not only the petitions (for joining as party) are required to be allowed, as the necessary consequence, even the injunction orders passed by the Trial Court need to be set aside, on the ground that it is in breach of principles of natural justice, since the suits filed by the Society suffer from non-joinder of necessary parties. It is submitted that the said injunction orders need to be set aside by this Court and for that purpose, learned advocate for the petitioners has addressed this Court at length, on merits in Appeals from Orders (Stamp) No.492 to 494 of 2016, which are filed along with the applications seeking leave of this Court to challenge the said orders. Since there is delay in filing those Appeals from Orders, to meet with the said objection, applications for condonation of delay are also filed along with application for stay. It is submitted that those Appeals from Orders be allowed by this Court.
10.7 Mr. Desai, learned senior advocate has in support of his submissions relied on the following authorities.
1. Jayesh Enterprise V. Fakirchand Champaklal Shah reported in 1996 (1) GLR 790
2. Kantilal Ambalal Patel V. Jalaram Land Developers Prop. Of Kamleshkumar Shankarbhai decided by this Court in Special Civil Application No. 4977 of 2012 dated 25.07.2013
3. Thomson Press (India) Limited V. Nanak Builders and Investors Private Limited reported in (2013) 5 Supreme Court Cases 397
4. Amit Kumar Shaw V. Parida Khatoon reported in Page 25 of 51 C/SCA/18816/2017 CAV ORDER (2005) 11 SCC 403
5. Sumitbai V.s Paras Finance Co. Reg. Partnership Firm Through Mankanwar reported in (2007) 10 SCC 82
6. Nitinkumar Laxmidas Alias Lakhybhai V. Smt. Savitaben Pranshanker reported in 1996 (1) GLH 224
7. Kaushik Rajendra Thakore V. Allied Land Corporation reported in 1987 (1) GLH (U.J.) 22
8. Manohar Lal Sharma V. Sanjay Leela Bhansali reported in (2018) 1 SCC 770
11. Mr. Mihir Joshi, learned senior advocate for the Society has opposed the said Appeals from Orders. It is submitted that the Trial Court has not committed any error by granting injunctions and even if the say of the Talati and Jalaram that they were required to be joined as party defendants in the proceedings instituted by the Society is accepted by this Court, then also, no interference be made by this Court in the injunction orders. For this purpose, learned senior advocate for the Society has addressed the Court at length on the merits of the suits.
12.1 On behalf of group of Kantilal (except Miraj Patel - a grand son of Kantilal), learned advocates whose appearances are recorded above have submitted that their contest stands against Society and to that extent if their arguments appear to be in favour of Talati and Jalaram, let it so appear. It is submitted that Jalaram and Talati need to be heard in the suits of the Society. Without prejudice to this it is submitted that, on merits they do not support the case of Jalaram or Talati.
Page 26 of 51C/SCA/18816/2017 CAV ORDER 12.2 Mr. Mehul S. Shah, learned senior advocate with Mr.
Jenil M. Shah, learned advocate has appeared on behalf of Mr. Miraj Patel, who is a grand-son of Kantilal. He is supporting the case of the Society in all the matters. He has adopted the arguments of Mr. Mihir Joshi, learned senior advocate for the Society. He has relied on the following authorities to support his submissions.
1. Darayas Bamanshah Medhora V. Nariman Bamansha Medhora, decided by this Court in Fisrt Appeal No. 1719 of 2000, decided on 06.11.2001.
2. Sri Gangi Vinayagar Temple V. Meenakshi Ammal and Others, reported in (2015) SCC 624.
3. Maharwal Khewaji Trust (Regd.), Faridkot V. Baldev Dass, reported in AIR 2005 SC 104.
4. Income Tax Office, Cannanore V. M.K. Mohamad Kunhi, reported in AIR 1969 SC 430.
5. Manohar Lal Chopra V. Rai Bahadur Rao Raja Seth Hiralal, reported in AIR 1962 SC 527.
6. Ram Chandra Aggarwal and another V. The State of U.P., reported in AIR 1966 SC 1888.
7. Ramesh Hiranand Kundanmal V. Municipal Corporation of Greater Bombay, reported in 1992 (2) SCC 524.
8. Kanji Mulji Kanani V. Manglaben Parmanand, reported in 1969 AIR 308 Guj.
9. State of Punjab V. Amar Singh, reported in AIR 1974 SC 994.
12.3 Mr. Asim Pandya, learned advocate, who is appearing on caveat for some of the parties, is also heard by Page 27 of 51 C/SCA/18816/2017 CAV ORDER this Court. Details in this regard are noted in the later part of this order.
13. The above would take care of the submissions of all the learned advocates, in all the matters, except Special Civil Application No.18816 of 2016, for which the submissions are separately noted. For Appeal from Order No.372 of 2016, the submissions are noted hereinafter.
14.1 So far Appeal from Order No.372 of 2016 is concerned, Mr. Unwala, learned advocate for the appellants (Kantilal) has submitted that the Trial Court fell in error by granting the injunction order dated 21.06.2016 and the same needs to be quashed and set aside. As against that Mr. Mihir Joshi, learned senior advocate for the contesting respondent - Society has submitted that the Trial Court has not committed any error by granting the said injunction in favour of the Society. It is submitted that this Appeal from Order be dismissed.
14.2 It is noted that the learned advocates have addressed the Court at length. They have extensively taken this Court through the paper-book, which runs into hundreds of pages. As already noted above, though learned advocates for the respective parties have extensively addressed the Court on merits of the matter, since the suit is large open before the Trial Court, all those arguments are not dealt with by this Court in detail, so that it may not prejudice either of the parties. Further, in view of the final order which is being passed by this Court, it would be neither necessary nor proper to deal with those arguments on merits.
Page 28 of 51C/SCA/18816/2017 CAV ORDER
15. Having heard learned advocates for the respective parties and having considered the material or record, this Court finds as under.
15.1 The contest is between three different groups. One is the Society, second is Kantilal (and his family members) and third is two persons, claiming some interest in the suit property on the ground that there was development agreement / agreement to sale in their favour. So far Kantilal group is concerned, grandson of Kantilal - Mr. Miraj Patel is on the side of the Society. Rest are at-least making a show of being united and further that they are against the society.
15.2 The third group is divided into two sub-groups. One is Jalaram and the second is Talati. They both claim some interest in the suit property on the basis of development agreement / agreement to sale by Kantilal in their favour. They are contesting against the Society and Kantilal both.
15.3.1 The Society is Plaintiff / Applicant in Civil Miscellaneous Application No. 149 of 2013 which is filed against Kantilal, Jashbhai, Arvindbhai etc., which, in substance, is a suit for setting aside the consent decree between the Society and Kantilal, principally on the ground that, it was fraudulently got from the Trial Court by Kantilal, projecting his own persons (Jashbhai, Arvindbhai etc.) as office bearers of the society. Over and above the said proceeding, there are other suits filed by the Society, which are already referred above, the details of which are as under.
Page 29 of 51C/SCA/18816/2017 CAV ORDER 15.3.2 Special Civil Suit No. 473 of 2013 is filed on
31.08.2013 by Society (Balashinor Group) against Kantilal, Jashbhai, Arvindbhai, Harish Patel & Vikas More. The said suit was filed for cancellation of the sale deed dated 22.11.2010 and setting aside the agreement to sale dated 20.06.2001 and further for declaration to the effect that the suit land is of the ownership and possession of the Society.
15.3.3 Special Civil Suit No. 528 of 2013 is filed on 15.10.2013 by Society (Khetwadi Group) against Kantilal, Jashbhai, Arvindbhai, Harish Patel & Vikas More. The said suit was filed for cancellation of the sale deed dated 22.11.2010 and setting aside the agreement to sale dated 20.06.2001 and further for declaration to the effect that the suit land is of the ownership and possession of the Society.
15.3.4 Special Civil Suit No. 548 of 2013 is filed on 17.10.2013 by Society (Valkeshwar Group) against Kantilal, Jashbhai, Arvindbhai, Harish Patel & Vikas More. The said suit was filed for cancellation of the sale deed dated 22.11.2010 and setting aside the agreement to sale dated 20.06.2001 and further for declaration to the effect that the suit land is of the ownership and possession of the Society.
15.4 Jalaram and Talati both have separately filed suits viz. Special Civil Suit No. 749 of 2011 and Special Civil Suit No. 523 of 2014 respectively. In the suit filed by Talati, Society filed an application for being joined as party defendant. Trial Court has allowed the same vide order below Exh.17 in Special Civil Suit No. 523 of 2014. At the same time, Talati and Jalaram also filed applications for being joined as party defendants in Page 30 of 51 C/SCA/18816/2017 CAV ORDER the above referred different proceedings instituted by the Society. Those applications came to be rejected. Those orders of the Trial Court, permitting the society to join the litigation instituted by Talati, and at the same time rejection of applications of Jalaram and Talati to join in proceedings instituted by the Society, has given rise to number of petitions, which are already noted above.
15.5 Over and above the said group of petitions, injunction granted in favour of the Society and against the defendants is also under challenge before this Court. The injunction granted below application Exh. 8A in Civil Miscellaneous Application No. 149 of 2013 is challenged by Kantilal. It is by way of Appeal from Order No. 372 of 2016.
15.6 Injunction granted in favour of the Society in other suits is not challenged by Kantilal but is challenged by Jalaram by filing different Appeals from Orders being Appeal from Orders (stamp) No. 492, 493 and 494 of 2016. Since Jalaram was not party to the litigation (since the applications for being joined as party defendant was already rejected by the Trail Court), Civil Applications seeking leave of this Court are filed being Civil Applications (leave to Appeal) No. 587, 1375 and 1376 of 2016, to challenge the said injunction orders in respective suits.
16.1 So far the petitions, where the grievance is made by Jalaram and Talati that their applications for being joined as party defendants in the proceedings instituted by the Society ought to have been allowed, are concerned, this Court finds that the suit land is the same in all the matters. The decision in Page 31 of 51 C/SCA/18816/2017 CAV ORDER one matter will have bearing on the other matters. In the suit filed by Jalaram, Society is already party defendant. In the suit of Talati, Society gave an application for being impleaded as party defendant which is allowed by the Trial Court. Thus, in all the proceedings instituted - other than by the Society, Society is very much party. In the proceedings instituted by the Society, neither Jalaram nor Talati is permitted to be joined as defendant. In this background, this Court finds substantial force in the submission of Mr. Anshin Desai, learned senior advocate for Talati and Jalaram that, if the Society is required to be heard in the proceedings of Talati and Jalaram, how Jalaram and Talati are not required to be heard in the proceedings instituted by the Society, more particularly when in all the proceedings, the suit land is the same. The contention of Mr. Desai needs to be accepted that, no prejudice would be caused to the Society if Jalaram and Talati are joined as party defendants in the proceedings of the Society but if Jalaram and Talati are not permitted in the proceedings of the Society, the same would lead to irreversible situation for Jalaram and Talati. This Court finds that without creating any further complication in the matter, the controversy between the parties can be effectively adjudicated by the Trial Court, if all of them are heard by the Trial Court together. The petitions before this Court in that regard by Talati and Jalaram therefore need to be allowed. There are additional reasons for doing so. They are as under.
16.2 In the suit filed by the Society, (Special Civil Suit No. 528 of 2013), the Society itself has referred to Jalaram with the averments in the plaint, to the effect that ......with mala- fide intention of encroaching the lands (the very Page 32 of 51 C/SCA/18816/2017 CAV ORDER suit land), Kantilal in collusion with his accomplice Jalaram Land Developers has instituted another Special Civil Suit No. 749 of 2011 for .... qua the suit land........ It is the settled position of law that, a person against whom some allegation is made in the pleading, would be a necessary party. Jalaram therefore should have been joined as party defendant by the Society itself, on the face of the above averments. Not only Jalaram was not joined as party defendant, when applications were given by Jalaram that he should be permitted as party defendant, those applications were also objected by the Society and the Trial Court also upheld the said objection. This Court finds that, this has resulted in miscarriage of justice and therefore, to that extent the order of the Trial Court would call for interference.
16.3 So far the locus of Talati is concerned, it is undisputed that, in the suit of Talati, the Society filed an application to be joined as party defendant which was allowed by the Trial Court. At the same time, the applications given by Talati for being joined as party defendant in the proceeding instituted by the Society were rejected by the Trial Court. This Court has considered both the orders passed by the Trial Court in this regard. The reasons recorded by the Trial Court for permitting the Society to join as party defendant in the suit of Talati need to be applied qua the Society also, when it comes to the application of Talati for being joined as party defendant in the suits / proceedings of the Society. The reasons recorded by the Trial Court in these two orders are self-contradictory and both can not be allowed to stand simultaneously. Which one should go, would be the point at issue. Talati has already challenged the order of the Trial Court permitting Society to be Page 33 of 51 C/SCA/18816/2017 CAV ORDER joined as party defendant in his suit (in the suit of Talati). The said petition needs to be rejected holding that when the suit land is the same, permitting the Society to join the proceedings of Talati can not be interfered with. Applying the very same logic, it needs to be held that Talati should also have been permitted to join as party respondent in the proceedings instituted by the Society. For this reason, while upholding the order of the Trial Court permitting the Society to join the proceedings of Talati, the orders of the Trial Court refusing to permit Talati to join the proceedings instituted by the Society need to be quashed and set aside.
16.4 The cumulative effect of what is held above would be that, the challenge by Talati to the order of the Trial Court, whereby the Society is permitted to be joined as party defendant in the suit of Talati, is rejected. As the necessary consequence thereof, the orders of the Trial Court rejecting the applications of Talati to join as party defendant in the proceedings instituted by the Society, need to be interfered with and the petitions filed by Talati in this regard need to be allowed.
16.5 This Court further finds that rejection of the applications of Jalaram for being joined as party respondent in the proceedings of the Society has already resulted in multiplicity of proceedings before this Court. Not only the rejection of applications of Jalaram are challenged before this Court by Jalaram (in the petitions of the year 2015), subsequent grant of injunction by the Trial Court in favour of the Society is also challenged before this Court by Jalaram by seeking leave of this Court to challenge the said injunction Page 34 of 51 C/SCA/18816/2017 CAV ORDER orders. Those Appeals from Orders are at stamp number level and whether, leave as prayed for should be granted or not, is the point at issue before this Court. So far the controversy with regard to joining parties is concerned, it is already held above that Jalaram and Talati both should have been permitted by the Trial Court to join as party in the proceedings instituted by the Society. At this stage it is noted that a contention is raised on behalf of the Society, by referring to the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 that Civil Miscellaneous Application No. 149 of 2013 can not be said to be a suit and therefore in the said proceedings, neither Jalaram nor Talati should be permitted. In this regard it is noted that the said matter is not being tried by the Trial Court as a single matter. There are other suits also, which are filed by the Society, the details of which are already noted above and the presence of Jalaram and Talati both are held to be necessary in those suits. Under these circumstances, there would not be any material difference, so far the said Civil Miscellaneous Application is concerned. If, because of the presence of Jalaram and Talati, the sailing of the Society is to become difficult, that itself may not be a ground to upheld the said contention. Further, there is serious allegation by Jalaram and Talati both that, there is connivance of the Society and Kantilal against them (i.e. against Jalaram and Talati) qua the suit property. This aspect is examined by this Court to the extent necessary, in the later part of this order (para: 21 & 22). On that additional count also, it is held that the presence of Jalaram and Talati need to be there, in the proceedings instituted by the Society, qua the suit land, and the Civil Miscellaneous Application No. 149 of 2013 before the Trial Court would be no exception to it.
Page 35 of 51C/SCA/18816/2017 CAV ORDER 16.6 The consequential effect of the above would be
that, before any injunction application filed by the Society could be considered by the Trial Court, not only Kantilal but Jalaram / Talati also ought to have been heard by the Trial Court. It is noted that, the date of rejection of the applications of Jalaram to be joined as party defendant in the proceedings of the Society is 19.08.2015, which was immediately challenged before this Court in the year 2015 itself. The injunction orders passed by the Trial Court in favour of the Society are dated 28.07.2016, 22.08.2016 and 22.08.2016 i.e. much later. When this Court has found (in Special Civil Applications No. 14958 to 14961 of 2015) that Jalaram was necessary party and rejection of the applications of Jalaram vide orders dated 19.08.2015 was illegal, the clock will have to be set back to that date. The consequence thereof would be that the injunction orders passed by the Trial Court on 28.07.2016, 22.08.2016 and 22.08.2016 would also require reconsideration. The said orders are already challenged before this Court by Jalaram. The same can be examined on merits by this Court, however in substance that would result in re- adjudication of injunction applications, after hearing the parties, including Jalaram for the first time. Any order that may be passed by this Court at this stage would prejudice the right of appeal of the aggrieved party before this Court. It would therefore be prudent for this Court not to examine the merits of the orders granting injunction in favour of the Society by the Trial Court, and the matters should be remanded back to the Trial Court to first hear all the parties, including who are joined as party defendants now and thereafter pass appropriate order on the injunction applications filed in the respective suits. For Page 36 of 51 C/SCA/18816/2017 CAV ORDER that purpose, those orders need to be set aside. While doing so, it is observed that those orders of the Trial Court need to be set aside on other grounds as well. This Court has taken into consideration the reasons recorded by the Trial Court in those orders as well as the orders recorded while allowing application of the Society for being joined as party in the proceedings of Talati and vice-versa and on conjoint consideration thereof, it has transpired that, the Trial Court has, while deciding those applications, not only rejected all the probable defences which Kantilal or any other defendant could have taken, but has also answered all the issues in favour of the Society, without those issues even being framed by the Court. The Trial Court has, in-substance, not only allowed the suits / application of the Society but has also dismissed (in substance) the suits of Jalaram and Talati both. The enthusiasm on the part of the Trial Court to the said extent was unwarranted and the findings / observations of the Trial Court in that regard need to be set aside. The orders qua joining party are set aside completely, as noted above. While setting aside the impugned orders on injunction applications as noted in this paragraph, and also for the reasons noted above, it is clarified that, whether the injunction ought to have been granted or not, for or against any party, on that point, no opinion is expressed, since the same is directed to be reconsidered by the Trial Court after hearing all the parties, pursuant to the order which is being recorded by this Court.
16.7 When the matters are being remanded back to the Trial Court for reconsideration on the question of grant or otherwise of injunction qua the suit property, for or against the Society or other parties, the question would also crop up as to Page 37 of 51 C/SCA/18816/2017 CAV ORDER whether the said challenge at the instance of Kantilal (Appeal from Order No. 372 of 2016) should be considered by this Court. For the reasons recorded above, this Court finds that ends of justice would meet if all the injunction applications are considered by the Trial Court again after hearing all the parties as per the present order, and for this reason, Appeal from Order No. 372 of 2016 is not further examined on merits but the order impugned therein is set aside with the above observations and clarifications.
16.8 At this stage it is noted that, the Society has instituted five suits and one Civil Misc. Application, the details of which are noted in Para : 3.2 above. The proceedings before this Court pertain to three of the above suits and the Civil Misc. Application and the orders passed therein by the Trial Court, the details of which are noted above (Para : 4.1 to 4.14). From that it transpires that, no order from two suits viz., Special Civil Suit No.549 of 2013 and 553 of 2013 is under challenge before this Court, at least in this group of matters. It is indicated that, those applications are not decided so far. This aspect is noted only for the purpose of completing the facts.
16.9 As already noted above, learned advocates for the contesting parties have addressed the Court at length by referring to the paper-book of few hundred pages, number of contentions are raised including on the merits of the suits and have also relied on number of authorities in support of their submissions. So far the issue of joining party is concerned, reasons are recorded in detail hereinabove, however so far the merits of the controversy, including as to whether the injunction qua the suit property should have been granted for Page 38 of 51 C/SCA/18816/2017 CAV ORDER or against any party, is concerned - those aspects are being directed to be reconsidered by the Trial Court for the reasons recorded in this order, and therefore the arguments and authorities in that regard are not dealt with in this order so that it may not prejudice the case of either party before the Trial Court.
17.1 The above reasons and findings would take care of all the matters of this group except Special Civil Application No. 18816 of 2017. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that so far the said petition is concerned, the plaintiff Society had given an affidavit of Mr. Divyang Jha as its examination-in-chief. The same was objected by the defendants. During the pendency of the said objection, on behalf of Society, one more affidavit was presented again through Mr. Divyang Jha. The Trial Court has rejected the same to be taken on record. The same is challenged before this Court. This Court has considered the reasons recorded by the Trial Court for not permitting the said additional affidavit to be taken on record. This Court finds that the reasons recorded by the Trial Court are unsustainable. The Trial Court should have permitted proper evidence to come on record. The veracity thereof is a different thing and it could be examined subsequently, however not permitting the same to come on record has prejudiced the case of the Society, with whatever mask it might be pursuing the litigation, as alleged by the other side. For that reason, the said petition needs to be allowed.
17.2 It is noted that, it would not be proper to say that
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there is no material progress in the matter, as contended by the learned advocate for the Society, since the Trial Court has already granted injunction in favour of the Society and against the defendant in that very matter. Under these circumstances, if the additional affidavit is not permitted to be taken on record, there would be an irreversible situation for the plaintiff Society and on that count also, the grievance of the Society needs to be accepted. It is further noted that, permitting this to be taken on record even otherwise is not going to cause any prejudice to the defendant, for the additional reason that the injunction which is granted against the defendants and in favour of the Society is also being modified in the final operative part in this order. Considering the totality, this Court finds that, ends of justice would meet if the additional affidavit of Mr. Divyang Jha dated 15.07.2017 is permitted to be put on record of Civil Miscellaneous Application No. 149 of 2013 before the Trial Court. The said petition therefore needs to be allowed.
18. With the above reasons and findings, appropriate final order can be and is being recorded qua all the matters, in the operative part of this order. It is also noted that, during the course of hearing, serious grievances are made by the parties, qua few other aspects also, which need a mention. They are as under.
19. As noted in para 15.1 and 15.2 above, there are three groups - Society, Kantilal and Jalaram / Talati. All the three have made serious grievance that remaining two groups are in connivance. On behalf of Jalaram and Talati it is submitted that, though a show is being made by the Society and Kantilal Page 40 of 51 C/SCA/18816/2017 CAV ORDER that they are at the loggers head, in fact they are hands in glove and both of them are continuing with the proceedings at the cost of Jalaram / Talati. At the same time, on behalf of the Society it is submitted that, there is connivance by Kantilal with Jalaram and Talati to harm the interest of the Society. One more grievance agitated before the Court is that, the litigation by the Society is not by any genuine person. For this reason, learned advocates for Kantilal and Jalaram / Talati have taken this Court through the contents of the various pleadings / documents filed on behalf of the Society through one Mr. Divyang Jha and it is contended that, he is the mask of some elements who have purchased the litigation from the Society and if the accounts of the Society / the details of the members of the Society, the correspondence exchanged by the Society with the Statutory Authority like the District Registrar of Co- Operative Societies etc. are considered, the real face of those elements, who are abusing the process of law, can be unmasked. At this stage, reference also needs to be made to the submissions of learned senior advocate for Talati / Jalaram (as noted in para 10.3 above), and this Court has also found that aspect to be very unusual and having multi-dimensional effect, which is as under. The restrain orders by the Trial Court are in favour of the Society and against all the defendants, starting from Kantilal. The interest of Kantilal and his associates can not be on different sides. Kantilal has already challenged one restrain order dated 21.06.2016, but has not challenged the second batch of three identical restrain orders (one order dated 28.07.2016 and two more orders dated 22.08.2016). A party against whom an order is passed, may or may not challenge that order, but the said party would certainly not make any attempt to salvage that order, or for Page 41 of 51 C/SCA/18816/2017 CAV ORDER that purpose would file caveat application before the higher forum. Even then, the second batch of restrain orders is not only not challenged, but caveat applications are filed before this Court by some of the Associates of Kantilal. Reference in this regard can be made to the caveat applications filed before this Court by the persons, who all were sailing with Kantilal, the details of which are noted hereinafter.
20. So far allegations against Mr. Divyang Jha is concerned, it needs to be noted that neither that is the point at issue before this Court, nor there is sufficient material in that regard and therefore that aspect is not further examined by this Court, leaving it open to the parties to agitate that point before the Trial Court and the Trial Court may look into it, to the extent necessary. If the Trial Court decides to go into the question, whether the said Mr. Divyang Jha is the mask of some elements, who allegedly have purchased the litigation from the Society, it would be open to it to ask for the accounts of the Society, the details of the members of the Society, the correspondence exchanged by the Society with the Statutory Authority like the District Registrar of Co-Operative Societies etc. and to take assistance of any State Agency including the District Registrar of Co-Operative Societies in that regard to examine the veracity of the allegations against Mr. Divyang Jha and / or the Society.
21. So far the allegation of connivance between the parties is concerned, that aspect is not examined in detail by this Court, leaving it open to the parties to agitate that point also before the Trial Court, however it is noted that, some unusual things have happened before this Court. As already noted above, the Page 42 of 51 C/SCA/18816/2017 CAV ORDER restrain orders passed by the Trial Court are in favour of the Society and against all the defendants. The interest of Kantilal and his associates can not be on different sides. Kantilal has already challenged one restrain order dated 21.06.2016, but did not challenge the second batch of three identical restrain orders (one order dated 28.07.2016 and two more orders dated 22.08.2016). A party against whom an order is passed, may or may not challenge that order, but the said party would certainly not make any attempt to salvage that order, or for that purpose would file caveat application before the higher forum. Even then, the said second batch of restrain orders is not only not challenged, but caveat applications are filed before this Court by some of the associates of Kantilal. It is also a matter of record that, caveat applications filed by the Society and by the above litigants are in close proximity of time. Nothing may turn on it, since the Society in any case is the party who has all the reasons to defend the said orders, however filing of caveat applications on behalf of persons who could have been appellants, is quite unusual. It is in this background this Court finds that, the allegation of Talati and Jalaram, that there is connivance between the Society and Kantilal, would require closer scrutiny.
22.1 There is one more dimension of the above aspect. The stand of the said caveators is not only mysterious, but it has also resulted in 'Bench Hunting'. For this purpose, following details with regard to those caveat applications, which is available on record need to be noted here. Those applications were presented before this Court through Mr. Asim Pandya, learned advocate.
Page 43 of 51C/SCA/18816/2017 CAV ORDER (i) Caveat Application No. 1036 of 2017 was filed before this
Court by one Anuben Kantilal Patel, original defendant No. 5 of Special Civil Suit No. 548 of 2013. The said suit was filed by the Society, in which Kantilal was the original defendant No. 1 and Anuben was joined as one of the co-defendants along with Kantilal. It is in Appeal from Order (Stamp) No. 493 of 2016. The said caveat application was presented to the Registry of this Court on 07.03.2017 (as per the stamp on the presentation form), qua the order of the Trial Court dated 22.08.2016. The computer details show that it was registered on 03.04.2017.
(ii) Caveat Application No. 1035 of 2017 was filed before this Court by one Vikas Ramesh More, original defendant No. 5 of Special Civil Suit No. 437 of 2013. The said suit was filed by the Society, in which Kantilal was the original defendant No. 1 and Vikas Ramesh More was joined as one of the co-defendants along with Kantilal. It is in Appeal from Order (Stamp) No. 492 of 2016. The said caveat application was presented to the Registry of this Court on 07.03.2017 (as per the stamp on the presentation form), qua the order of the Trial Court dated 28.07.2016. The computer details show that it was registered on 29.03.2017. It is also noted that the vakalatnama which is accepted by the learned advocate is signed by said Vikas More but it is in the name of 'Anuben K. Patel'.
(iii) Caveat Application No. 1034 of 2017 was filed before this Court by one Dilipbhai Manilal Patel, original defendant No. 5 of Special Civil Suit No. 528 of 2013. The said suit was filed by the Society, in which Kantilal was the original defendant No. 1 and Dilipbhai Manilal Patel was joined as one of the co-defendants along with Kantilal. It is in Appeal from Order (Stamp) No. 494 Page 44 of 51 C/SCA/18816/2017 CAV ORDER of 2016. The said caveat application was presented to the Registry of this Court on 07.03.2017 (as per the stamp on the presentation form), qua the order of the Trial Court dated 22.08.2016. The computer details show that it was registered on 03.04.2017. It is also noted that the vakalatnama which is accepted by the learned advocate is signed by said Dilip Manibhai Patel but it is in the name of 'Vikas R. More'.
22.2 It is a matter of record that, the Bench taking up this subject (Appeal from Order), as per roster at the relevant time, does not take up the matters for hearing, wherein Mr. Asim Pandya, learned advocate appears. On the filing of the said caveat applications through Mr. Asim Pandya, learned advocate, as per the standing instructions of his Lordship about 'not before him', Registry listed those matters for hearing before another Bench as per the orders of Hon'ble the Chief Justice dated 04.04.2017.
22.3 There is one more additional factor, which would further taint this attempt. The comparison of the date of caveat applications and the date of orders of the Trial Court, qua which it was filed, itself speaks a lot.
22.4 On being asked, Mr. Asim Pandya, learned advocate for the said caveators, has not been able to explain, how it was felt necessary to file caveat applications to support the orders which were against those litigants, and further, what he has to say about timing and consequence thereof, which are noted above. Further inquiry in that regard would lead to personal embarrassment for the said learned advocate and therefore the same is not stretched further. It is not stretched further Page 45 of 51 C/SCA/18816/2017 CAV ORDER also for the reason that, co-incidentally, the said learned advocate is the President of the Gujarat High Court Advocates' Association (and at the relevant time also he was holding the said post), and no message should go to the public that, such posts / offices are exposed to potential misuse by the elements resorting to abuse of process of law. It is quite possible that, learned advocate might not have permitted this knowingly. Be that as it may, if one looks at this aspect, from the view point of professional misconduct on the part of the concerned learned advocate, it might have led to a situation where the matter could have been referred to the Bar Council of Gujarat for appropriate consideration, however this Court has restrained itself from looking at the matter from that view.
22.5 In totality, this Court finds that, this group of petitions / appeals need to be and are being disposed of as per the final order which is noted hereinafter, keeping in view the findings of this Court as noted from Para : 15 to 22.
23. For the reasons recorded above, the following order is passed.
23.1 Special Civil Application No. 18816 of 2017 (filed by the Society) is allowed. The impugned order dated 12.09.17 passed by the 13th Additional Senior Civil Judge, Vadodara in Civil Miscellaneous Application No. 149 of 2013 is quashed and set aside. The additional affidavit of examination-in-chief presented on behalf of the Society shall be taken on record and it would be open to the contesting parties to respond to it / deal with it, in accordance with law.
Page 46 of 51C/SCA/18816/2017 CAV ORDER 23.2 Special Civil Application No. 7746 of 2016 (which is
filed by Talati against the Society) is dismissed. The impugned order dated 27.10.2015 passed by the 15th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No. 523 of 2014 (suit of Talati) below application Exh. 17 (permitting the Society to join as party to the suit) is not interfered with.
23.3 Special Civil Application No. 7744 of 2016 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara rejecting application Exh. 58 is quashed and set aside. The said application, which was filed by Talati for being joined as a party defendant in Special Civil Suit No. 473 of 2013 (suit of the Society) is allowed.
23.4 Special Civil Application No. 7747 of 2016 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara rejecting application Exh. 57 is quashed and set aside. The said application, which was filed by Talati for being joined as a party defendant in Civil Miscellaneous Application 149 of 2013 (filed by Society) is allowed.
23.5 Special Civil Application 7745 of 2016 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara rejecting application Exh. 49 is quashed and set aside. The said application which was filed by Talati for being joined as a party defendant in Special Civil Suit No. 528 of 2013 (suit of the Society) is allowed.
Page 47 of 51C/SCA/18816/2017 CAV ORDER 23.6 Special Civil Application 7748 of 2016 is allowed.
The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara rejecting application Exh. 49 is quashed and set aside. The said application which was filed by Talati for being joined as a party defendant in Special Civil Suit No. 548 of 2013 (suit of the Society) is allowed.
23.7 Special Civil Application 14961 of 2015 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara, rejecting application Exh. 26 is quashed and set aside. The said application, which was filed by Jalaram Land Developers for being joined as a party defendant in Special Civil Suit No. 528 of 2013 (suit of the Society) is allowed.
23.8 Special Civil Application 14958 of 2015 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara, rejecting application Exh. 24 is quashed and set aside. The said application, which was filed by Jalaram Land Developers for being joined as a party defendant in Special Civil Suit No. 473 of 2013 (suit of the Society) is allowed.
23.9 Special Civil Application 14960 of 2015 is allowed. The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara, rejecting application Exh. 18 is quashed and set aside. The said application which was filed by Jalaram Land Developers for being joined as a party defendant in Special Civil Suit No. 548 of 2013 (suit of the Society) is allowed.
Page 48 of 51C/SCA/18816/2017 CAV ORDER 23.10 Special Civil Application 14959 of 2015 is allowed.
The impugned order dated 19.08.2015 passed by the 16th Additional Senior Civil Judge, Vadodara, rejecting application Exh. 19 is quashed and set aside. The said application, which was filed by Jalaram Land Developers for being joined as a party defendant in Civil Miscellaneous Application 149 of 2013 (filed by the Society) is allowed.
23.11 Civil Application No. 587 of 2017 in Appeal from order (stamp number) 492 of 2016 (filed by Jalaram) is allowed. Leave is granted to Jalaram to challenge the common order dated 28.07.2016 passed by the 15th Additional Senior Civil Judge, Vadodara, below injunction applications Exh. 5 & 22 in Special Civil Suit No. 473 of 2013.
The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered Appeal from Order. Since the application of Jalaram Land Developers for being joined as party defendant is already rejected by the Trial Court, Civil Application being 587 of 2017 is filed in seeking leave of this Court to appeal.
23.12 Civil Application No. 1375 of 2017 in Appeal from Order (stamp number) 493 of 2016 (filed by Jalaram) is allowed. Leave is granted to Jalaram to challenge the common order dated 22.08.2016 passed by the 15th Additional Senior Civil Judge, Vadodara, below injunction applications Exh. 5 & 20 in Special Civil Suit No. 548 of 2013.
Page 49 of 51C/SCA/18816/2017 CAV ORDER The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered Appeal from Order. Since the application of Jalaram Land Developers for being joined as party defendant is already rejected by the Trial Court, Civil Applications being 1376 of 2017 is filed in seeking leave of this Court to appeal.
23.13 Civil Application No. 1376 of 2017 in Appeal from order (stamp number) 494 of 2016 (filed by Jalaram) is allowed. Leave is granted to Jalaram to challenge the common order dated 22.08.2016 passed by the 15th Additional Senior Civil Judge, Vadodara, below injunction applications Exh. 5 & 15 in Special Civil Suit No. 528 of 2013.
The said injunction application was filed by the Society. The said application came to be allowed by the Trial Court, which is challenged by Jalaram Land Developers in this unregistered Appeal from Order. Since the application of Jalaram Land Developers for being joined as party defendant is already rejected by the Trial Court, Civil Applications being 1375 of 2017 is filed in seeking leave of this Court to appeal.
23.14 In view of Para : 23.11, 23.12 and 23.13 - Appeal from Order (Stamp) No.492 to 494 of 2016 shall be given regular number by the Registry. Those Appeals from Orders stand allowed. The orders recorded by the Trial Court, impugned in the said Appeals, are quashed and set aside. The injunction applications, on which those orders were recorded by the Trial Court, shall be considered again, afresh by the Trial Court, after hearing all the parties. It is directed that while Page 50 of 51 C/SCA/18816/2017 CAV ORDER doing so, the Trial Court shall keep in view the observations of this Court as contained in this order.
23.15 Appeal from Order No. 372 of 2016 is allowed. The impugned order dated 21.06.2016 passed by the 15th Additional Senior Civil Judge, Vadodara, below application Exh. 8A in Civil Miscellaneous Application No. 149 of 2013 is quashed and set aside. The said injunction application (which is filed by the Society) shall be considered again, afresh by the Trial Court, after hearing all the parties. It is directed that while doing so, the Trial Court shall keep in view the observations of this Court as contained in this order.
23.16 It is directed that, till the above referred injunction applications are considered and decided by the Trial Court, as ordered above, status-quo qua the suit property shall be maintained by all the parties, including the Society. It is further directed that, till then, no party shall change the nature of the suit property, in any manner.
(PARESH UPADHYAY, J) M.H. DAVE/1
24. After the pronouncement of this order, Ms. Acharya, learned advocate for the Society has requested that the present order of this Court (except qua Special Civil Application Nos. 18816 of 2017 and 7746 of 2016) be stayed. For the detailed reasons and observations noted hereinabove, this request is rejected.
(PARESH UPADHYAY, J) M.H. DAVE/1 Page 51 of 51