Gujarat High Court
Kunvarji Karamshi Savla vs Deceased Meethabhai Karamshi Hirji ... on 16 October, 2023
NEUTRAL CITATION
C/SCA/1846/2018 ORDER DATED: 16/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1846 of 2018
================================================================
KUNVARJI KARAMSHI SAVLA & 1 other(s)
Versus
DECEASED MEETHABHAI KARAMSHI HIRJI SAVLA & 4 other(s)
================================================================
Appearance:
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1,2,2.1,2.2
KOMAL S DAVE(8152) for the Respondent(s) No. 6
MR SIDDHARTH H DAVE(5306) for the Respondent(s) No. 6
NOTICE SERVED for the Respondent(s) No. 10,2,7,8,9
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/10/2023
ORAL ORDER
1. Heard learned advocate Mr. Pratik Khubchandani for M/S. Vyas Associates for the petitioners.
2. Notice served to respondents No.2, 7 to 9 and 10. None appears for respondents No.1 to 5 though served. Learned advocate Mr Siddharth H. Dave for respondent No.6 is not present when the matter was taken up for hearing.
3. By invoking the jurisdiction under Articles 14, 226 and 227 of the Constitution of India, the petitioner has prayed for following reliefs as under:-
A. The Hon'ble Court be pleased to issue a issue writ of mandamus or writ of certiorari or any other order, direction or writ in the nature of certiorari quashing and setting aside the order dated 20.11.2017 passed by the Learned Principal Civil Judge, Mandvi in Regular Civil Suit No.112 of Page 1 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023 NEUTRAL CITATION C/SCA/1846/2018 ORDER DATED: 16/10/2023 undefined 2015 below Exh.33 and further be pleased to allow the prayers as sought for vide application at Exh.33.
B. The Hon'ble Court be pleased to stay further proceedings of Regular Civil Suit No.112 of 2015 pending hearing and final disposal of the present petition.
C. To grant such other and further relief as the Hon'ble Court may deem fit and appropriate in the facts and circumstances of the case.
4. Heard learned advocate Mr. Pratik Khubchandani for M/s. Vyas Associates for the petitioners. The petitioner filed Regular Civil Suit No.112 of 2015 for a relief of partition of the suit property with permanent injunction. Plaintiff were not protected by any prohibitory order by the learned Trial Court.
5. Pending suit original-defendant No.1 who is deceased in the present proceedings sold one of the suit properties to one Mr. Nilesh Hanshraj Savla on 25.06.2015 by a registered sale deed bearing Registered No.2576. Thereafter, the said Mr. Nilesh Hanshraj Savla sold part of the suit land on 05.04.2016 by a registered sale deed bearing Registered No.1156 to one Hardik Jethalal Savla and Jethalal Kunvarji and the rest of the part of the suit land was sold by Mr. Nilesh Hanshraj Savla to Namrata Devang Savla on 05.04.2016 by a registered sale deed bearing Registered No.1155 and thereafter, Page 2 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023 NEUTRAL CITATION C/SCA/1846/2018 ORDER DATED: 16/10/2023 undefined the hands have changed during the pendency of the suit. The plaintiffs moved a composite application under Order 1 Rule 10(2) and Order 6 Rule 17 of the Code of Civil Procedure vide Exhibit-33 seeking addition of subsequent transferees and amendment in the plaint. Learned Principal Civil Judge, Mandvi after considering the submissions, rejected Exhibit-33 vide order dated 28.11.2017. Learned trial Court has mainly taken into consideration the nature of suit being a partition suit and thereafter has observed that by allowing the Exhibit 33, it would change the nature of suit. Learned advocate for the petitioner has submitted that pending suit multiple sale transactions have taken place which could lead to multiplicity of proceedings, if the amendment is not granted. He has further submitted that since the suit is for partition of the suit property, defendant No.1 sold the suit property and thereby created the rights of third party in the suit land. Hence, the amendment in the plaint and addition of parties was inevitable.
6. Learned advocate for the petitioners has placed reliance on the decision of this Court in the case of Ambalal Hirabhai Patel and Ors. Vs. Somabhai Parsottambhai Patel in Special Civil Application Page 3 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023 NEUTRAL CITATION C/SCA/1846/2018 ORDER DATED: 16/10/2023 undefined No.5514 of 2009 decided on 18.01.2010, wherein the Court has observed as under:-
5.5. In the present case, the amendment sought to be incorporated, is based upon subsequent events regarding the erection of a 'pucca' construction by the Respondent. As the said amendment will not change the nature of the suit, nor cause prejudice to the Respondent in any manner, there is no legal justification for passing the impugned order.
5.6. The provisions of Order 6, Rule 17 of the Code of Civil Procedure, permit either party to alter or amend the pleadings, at any stage of the proceedings. The submission of the learned Counsel for the Respondent that the amendment application has been moved at a belated stage, therefore, is without substance.
7. Having considered the submissions of the petitioners what is sought for by way of an amendment in a plaint and the addition of the parties. Firstly, a composite application of under Order 1 Rule 10(2) and under Order 6 Rule 17 is not maintainable as the provisions of Order 1 Rule 10(2) is to either add or strike out any parties in the suit whereas Order 6 Rule 17 deals with the amendment in the pleadings i.e. plaint and written statement. Since both the provisions are not interconnected, a composite application under Order 1 Rule 10(2) and under Order 6 Rule 17 is not permissible. Secondly, the suit is for partition of the suit property, it is settled principle of law that the parties who have purchased any property pending suit does it at his costs and risk. It is also well Page 4 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023 NEUTRAL CITATION C/SCA/1846/2018 ORDER DATED: 16/10/2023 undefined settled principle that the party who enters into any sale deed pending the suit, the outcome of the same suit shall be binding to the subsequent transferee. In the present facts, if eventually, plaintiff succeeds in proving his case and succeeds in the suit, the decision shall be binding to the subsequent transferee. And in such eventuality, the transferree will not get any right over the disputed land and the sale deed would be void ab inito and will not bind the original parties to the suit. The petitioners have also other legal efficacious remedy available.
8. It would be apposite to mention here the Section 52 of the Transfer of Property Act, 1882 which reads as under:-
52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.Page 5 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023
NEUTRAL CITATION C/SCA/1846/2018 ORDER DATED: 16/10/2023 undefined "Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
9. In the totality of the facts and circumstance of the case and having considered the order impugned, there is no perversity or illegality committed by the learned Principal Civil Judge while deciding Exhibit-33, thus, this petition is meritless the same is dismissed. No order as to costs.
10. Since the suit is of 2015, both the parties are directed to co- operate with the learned Trial Court for speedy and expeditious hearing of the suit.
(D. M. DESAI,J) RINKU MALI Page 6 of 6 Downloaded on : Wed Oct 18 20:40:09 IST 2023