Gujarat High Court
Ravechi Enterprise vs Bharatbhai Ramubhai Bharwad on 31 August, 2023
NEUTRAL CITATION
C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3037 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAVECHI ENTERPRISE
Versus
BHARATBHAI RAMUBHAI BHARWAD & 6 other(s)
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Appearance:
MR PUSHPADATTA VYAS(1296) for the Petitioner(s) No. 1
for the Respondent(s) No. 5.1,5.2,5.3
DECEASED LITIGANT for the Respondent(s) No. 5
MR RISHABH D PARIKH(10587) for the Respondent(s) No. 3,4
MR JAMSED KAVINA FOR MR SP MAJMUDAR(3456) for the Respondent(s)
No. 1,2,6
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 1,2,6
NOTICE SERVED BY DS for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/08/2023
ORAL JUDGMENT
Order dated 28/01/2016 passed below Exhibit-38 in Regular Civil Suit No.14 of 2015 by the learned Principal Senior Page 1 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined Civil Judge, Ankleshwar is sought to be challenged in the present petition whereby the application filed by the defendant at Exh.38 came to be allowed and proposed defendant therein is ordered to be joined as defendant No.7 in the suit.
2. The facts of the case in nutshell are that petitioner-org. plaintiff claims that he has become owner of the NA land bearing Survey/Block No.71 Paiki ad-measuring 5935 square meters of Village Kosamdi, Tal. Ankleshwar by purchasing it from its erstwhile owner who arraigned as respondent nos.3 to 6 through their power of attorney, by way of registered sale-deed dated 09/12/2010 bearing registered sale-deed no.9576. It is further the case of the petitioner that since they have purchased this NA land through registered sale-deed, they also got the possession and hold it since 2010. One third party claim the title and possession over this NA land by way of filing SCS No.55 of 2011 and in the said suit original owners i.e. respondents No.3 to 6 and power of attorney confirms the sale-deed in favour of the petitioner. However, later on, as per the case of the petitioner, the revenue authority; without hearing the petitioner cancelled the mutation entry. During pendency of the revenue proceeding, respondents No.3 to 6 who is alleged to have overreached the process and executed the sale-deed in favour of respondents no.1 and 2 dated 30/01/2013 qua the NA land. According to the petitioner, the said act was prejudicial to the title, interest and possession of the petitioner and therefore SCS No.14 of 2015 was filed before the learned Senior Civil Judge, Ankleshwar challenging the legality and validity of the petitioner's sale-deed dated 30/01/2013 executed inter se between respondents no.3 to 6 and respondents nos.1 and 2.
Page 2 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined 2.1 Application at Exh.38 under O.1 R.10 of the CPC was filed by the third party to join him as party respondent in the suit claiming that he is the power of attorney of the original owner. The petitioner-plaintiff in the suit has resisted the entry of the third party into the suit; but the learned Court below allowed the said application Exh.38 and permitted the third party to join the proceedings of the suit filed by the plaintiff. Being aggrieved, petitioner - plaintiff has filed this petition.
3. In the background of the fact when this petition was filed on 26/02/2016, this Court has passed the following order:
"Leave to add respondent No.7 as proposed party. Prima-facie, it appears that proposed party namely Mr. Nitin Harikrushna Dixit, who is power of attorney holder of original defendant Nos.3 to 6 in the present suit were also party defendants in the Special Civil Suit No.55 of 2011, which was instituted by one Mr.Mazun Rustamji. In the said suit, the said proposed party in his reply and more particularly para-4 thereof, he has asserted that he has executed sale deed in favour of present petitioner on 09.12.2010 and that too with the consent of defendant Nos.3 to 6. Further, the subject matter of present Special Civil Suit No.14 of 2015 is not the said sale deed dated 09.12.2010, but the plaintiff of Special Civil Suit No.14 of 2015 has challenged the subsequent sale deed executed by original defendant No.3 to 6 in favour of defendant Nos.1 and 2 on 30.01.2013.
In nutshell, the said third party has nothing to do with the execution and registration of sale deed dated 30.01.2013 and further, sale deed in favour of present petitioner-original plaintiff as a power of attorney of defendant Nos.3 to 6 is accepted by the third party, who is impleaded as third party in the present suit as per impugned order Page 3 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined passed below Exh.38. Therefore, the presence of third party is neither necessary nor is proper party and therefore, present petition deserves consideration.
Issue notice to the respondents, making it returnable on 27th April, 2016. Meanwhile, relief in terms of para-7(B) is hereby granted."
4. Heard learned Advocates appearing for the respective parties.
5. Learned Advocate Mr.Pushpadata Vyas for the petitioner- org. plaintiff pressing into service the principle of dominus litis would submit that O.1 R.10 of the CPC does not empower the third party to enter into the proceedings; initiated by the plaintiff against wish of the plaintiff. He would further submit that present third party is in fact the power of attorney of the original owner of the property. He has no personal locus or cause of action to appear in the suit proceedings. He would submit that learned Court below has totally misread the proposition of law while passing the impugned order. He would further submit that the defendant may have right to raise the contention that the plaintiff has not joined the proper and necessary party; but the defendant or even the proposed defendant cannot insist that the particular person should be joined as party defendant against the wish of the plaintiff. He would further submit that power under O.1 R.10 of the CPC is available either to the plaintiff or to the Court to implead the parties. In the present case, the plaintiff is seeking relief of cancellation of sale-deed executed by respondents no.3 to 6 in favour of respondents no.1 and 2 though the prior registered sale-deed was executed in favour of Page 4 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined the plaintiff. He would further submit that in such controversy / dispute, the power of attorney of the respondents no.3 to 6 was never necessary party. Whether the alienation of the suit- property took place in favour of the plaintiff or in favour of the respondents no.1 and 2 is legal or illegal, are the issues pending and to be decided by and between the parties of the suit and not in presence of any third party. He would further submit that learned trial Court has erred in joining third party against wish of the plaintiff. In support of his submissions, he would rely upon the decision in case of Sudhamayee Pattnaik & Ors. vs. Bibhu Prasad Sahoo & Ors., 2022 AIR (SC) 0-4304 . The above submissions are canvassed to allow this petition.
6. On the other hand, learned Advocate Mr.Jamsed Kavina for Mr.S P Majmudar, learned Advocate for the respondent has made two fold submissions. Firstly, he would submit that under Article 227 of the Constitution, this Court enjoys the supervisory jurisdiction. The nature and scope of the jurisdiction which this Court enjoys is limited and can be exercised sparingly and in proper case. He would further submit that this Court under the supervisory jurisdiction is not to correct the every error of fact or even the flaws in applying provision of law if the final finding is justified or can be supported. Reliance is placed upon decision in case of Garment Craft vs. Prakash Chand Goel (2022) 4 SCC 181 (see paragraph 15 and 16).
6.1 Second submission canvassed by learned Advocate Mr.Jamsed Kavina for the respondent that O.1 R.10 of the CPC cannot be overstretched. He would further submit that in appropriate case if the Court finds it fit, upon the application Page 5 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined being moved by the defendant that a particular person is necessary to adjudicate the litigation finally and properly, the Court can exercise the power under O.1 R.10 of the CPC to join such party as defendant. He would further submit that power is available suo motu to the Court or it can be exercised by the Court if it is moved by the concerned party.
6.2 Taking this Court through the impugned order, learned Advocate Mr.Jamsed Kavina for the respondent would submit that the learned Court below has felt the presence of the third party necessary to adjudicate the dispute between the parties. He would further submit that finding given by the learned Court below is clear on the aspect and has recorded that the third party is necessary and is required to be heard and further if he is not joined, the legality of the document called 'power of attorney' would not be decided and therefore he would submit that though the application Exh.38 was not moved by the plaintiff, the Court below has exercised its power envisage under the law. Such finding is within the bounden of the provision of law coupled with the fact and therefore such finding is not required to be interfered. In support of his submissions he would rely upon the decision of Bombay High Court in the case of Ashok s/o Babarao Patil vs. The State of Maharashtra (Writ Petition No.10493 of 2022).
7. Having heard the learned Advocates appearing for the respective parties, at the outset, let refer to O.1 R.10 of the CPC.
Page 6 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined "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 thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been 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 copes 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 Indian Limitation Act, 1877 (15 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."
8. A plain reading of the provision indicates that O.1 R.10(1) applies in favour of the plaintiff and it permits the plaintiff to rectify the cause-title of the suit if it is instituted in the name of the wrong person. The Court in such situation was required to see that the determination of the real matter in dispute has to be done. Order I Rule 10(2) of the Code empowers the Court at any stage of the proceedings, either upon or without the application of either party, to add or strike out the party to effectually and complete the adjudicating dispute between the party. The source of power upon the Court to strike or on the party comes from Order I Rule 10(2). Though the party are permitted to file the application for joining or striking out the parties, when the Court is passing the order, the Court has to satisfy itself that the Page 7 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined presence of a third party is necessary to effectually and complete adjudicating the dispute between the party and questions involved in the suit.
9. The principle of dominus litis means the plaintiff is in possession to adjudicate that against whom he is required to obtain the relief. The "dominus litis" is latin legal maxim which means "master of the suit" and that refers to the principle that party who initiated a legal action has control over the proceeding and has a right to make decision about how the case is conducted. Thus, the principle of dominus litis indicates that it is the plaintiff who is real and directly interested in the suit as a party. It is for the plaintiff in a suit to identify the party against whom he has any grievance and to implead them as defendant in the suit filed for necessary relief. He cannot compel to face litigation or litigant against whom he has no grievance.
10. The Hon'ble Apex Court in the case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd. reported in (2010) 7 SCC 417 in regards of the issue held following:
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties."Page 8 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023
NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined
11. Further discussing the scope of Order I Rule 10 (2) of the Code, the Apex Court has held as under:
"22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."
12. Useful reference can also be made to the case of Sudhamayee Pattnaik & Ors. (supra) wherein the Hon'ble Apex Court in paragraph 5 has held this:
"5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too Page 9 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined against the wish of the plaintiffs."
13. Apt to note that application at Exh.38 was moved by the defendant to join the third party which has been objected by the plaintiff. The plaintiff who is dominus litis was not interested in joining the third party and to obtain the relief against him. There is no suo motu proceeding carried by the learned Court below to join the third party and defendant who has moved the said application, could at the most raise the contention that a particular party is necessary party and in his absence effective and proper adjudication of the dispute could not be done. He cannot insist that particular person should be joined. A person sued cannot compel the plaintiff to sue any other person. It is true that the Court has wide power under O.1 R.10 to join any party even against the wish of the plaintiff for effective and proper adjudication of the questions and disputes pending before it; but the defendant. The power of Court is not depend on the wish of the plaintiff; but the judicial discretion of the Court which can be exercised on satisfaction that presence of third party is necessary for effectual and final adjudication of dispute.
13. A perusal of the impugned order indicates that the Court below has not exercised the suo motu power. He was carried by the application Exh.38 and while giving finding in favour of the defendant, the Court below has held that the power of attorney has played an important role and therefore he is required to be heard. The finding is clearly perverse and against the settled law. The power of attorney is just an agent of the master and in presence of the master in present case respondents no.3 to 6 presence of the power of attorney is not required. The question Page 10 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023 NEUTRAL CITATION C/SCA/3037/2016 JUDGMENT DATED: 31/08/2023 undefined before the Court was to decide about the legality of the sale-deed executed in favour of respondents no.1 and 2 by respondents no.3 to 6 and not the legality of the power of attorney document.
14. For the foregoing reasons, interference is called into the impugned order as the Court has travelled beyond the jurisdiction vested with it. The perversity of the impugned order explicit on the face of it and therefore the present petition succeeds. The impugned order is quashed and set aside; consequently the proceedings if any is taken place pursuant to impugned order, the same is also set aside. Needless to mention that considering the age of the suit, the learned Court below to hear and decide the suit finally within a period of one year from the date of the receipt of the writ of this order.
(J. C. DOSHI,J) sompura Page 11 of 11 Downloaded on : Sun Sep 17 03:02:28 IST 2023