Gujarat High Court
Mineshbhai Umedbhai Patel vs Piyushbhai @ Girishbhai on 24 June, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/4454/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4454 of 2014
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MINESHBHAI UMEDBHAI PATEL ....Petitioner
Versus
PIYUSHBHAI @ GIRISHBHAI
UMEDBHAI PATEL & ORS ....Respondents
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Appearance:
MR MB GANDHI, ADVOCATE for the Petitioner
MR PIYUSHBHAI @ GIRISHBHAI UMEDBHAI PATEL
the contesting Respondent No. 1 (IN PERSON)
MR R V ACHARYA, ADVOCATE for the Respondents No. 3-4
RC JANI & ASSOCIATE, ADVOCATE for the Respondent No. 6
Respondent No.2 is served
Respondent No. 5 is unserved (not the contesting party)
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CORAM: HONOURABLE MR.JUSTICE PARESH
UPADHYAY
Date : 24/06/2015
ORAL ORDER
1. Challenge in this petition is made by the original defendant to the order passed by the Principal Senior Civil Judge, Ahmedabad (Rural), dated 29.03.2011 rejecting the application Exh.261 in Special Civil Suit No.234 of 2000.
Page 1 of 6 C/SCA/4454/2014 ORDER2. Mr.Gandhi, learned advocate for the petitioner has submitted that the present petitioner is one of the defendants in the suit and he is named as 'Minesh Ratilal Patel', which ought to have been 'Minesh Umedbhai Patel'. It is submitted that, therefore the title of the suit was required to be amended, for which application was given, which is objected by the original plaintiff. The said objection is upheld by the Court below which has given rise to this petition. It is submitted that in all the documents, the name of the present petitioner is correctly mentioned as Minesh S/o Umedbhai Patel and therefore even if the proceedings in question are proceeded further, it would lead to the complications, since the petitioner can very well contend that the decree is passed against a wrong person. It is submitted that the present petitioner has shown his bona fide by pointing out correct facts to the Court below and there was no reason not to allow the said application. Learned advocate for the petitioner has addressed the Court at length, as to how the present respondent No.1 has abused the process of law and has also abused his father as well. It is submitted that the impugned order be interfered with.
3. On the other hand, Mr.Piyushbhai @ Girishbhai Umedbhai Patel - original plaintiff has vehemently opposed this petition. He has appeared in person and it is submitted that the petitioner - Mineshbhai is not the son of Umedbhai and therefore he need not be identified accordingly. It is submitted that the Court below has rightly not granted the said application, which may not be interfered with by this Court. It is submitted that this petition be dismissed.
Page 2 of 6 C/SCA/4454/2014 ORDER4. Having heard learned advocates for the petitioner and Mr.Piyushbhai @ Girishbhai Umedbhai Patel - the contesting respondent, and considering the material on record, this Court finds as under.
4.1 The present respondent No.1 - Piyushbhai @ Girishbhai Umedbhai Patel, instituted the civil suit, ostensibly along with his mother and brother. Thus, initially there were three plaintiffs. The present petitioner, his mother and sister were joined as party defendants. The suit in question is principally for the estate of Umedbhai.
4.2 Umedbhai Patel had married with Hiraben and from that wedlock, two sons were born. One of them is the present contesting respondent No.1 - Piyushbhai @ Girishbhai S/o Umedbhai Patel and the second is Ashokbhai Umedbhai Patel.
4.3 Umedbhai and Hiraben separated in the year 1964.
4.4 Thereafter Umedbhai married with Sushilaben. From that wedlock two children are borne. One son and one daughter. They are Mineshbhai and Bhumiben. The said Mineshbhai is the present petitioner.
4.5 The said Umedbhai died on 29.09.1998.
4.6 After the death of Umedbhai Patel, his one of the sons, from the first wedlock - the present Respondent No.1 instituted the civil suit for declaration and permanent injunction, (pertaining to the properties of Umedbhai). In the cause title of the said suit, his mother Hiraben and brother Ashokbhai were Page 3 of 6 C/SCA/4454/2014 ORDER also shown as plaintiffs. The defendants of the suit were the second wife of Umedbhai viz. Sushilaben, and the children of Umedbhai with the wedlock of Sushilebn viz. Mineshbhai and Bhumiben.
4.7 Two of the original three plaintiffs - i.e. except the present Respondent No.1, disowned the suit. Thus, the first wife of Umedbhai and the real brother of the present respondent No.1 disowned the say of the present respondent No.1. They are transposed as the defendants.
4.8 In the cause title of the suit, the sole plaintiff had named the contesting defendants differently. The plaintiff ignored the relationship of Umedbhai with Sushilaben and birth of two children from that relationship. Sushilaben was not referred to as 'Sushilaben Umedbhai Patel' but 'Sushilaben Ratilal Patel'. Ratilal is the father of Sushilaben. The present petitioner who is son of Sushilaben is mischievously named as 'Mineshbhai Ratilal Patel'. Ratilal Patel is maternal grandfather of Mineshbhai. Under these circumstances, the said defendant gave application that he be correctly named as 'Minesh S/o Umedbhai Patel' in the suit. The same was objected by the plaintiff, and the application is rejected by the Court below. It is this controversy, which is not the principal controversy of the suit, which is the subject matter before this Court in this petition.
4.9 The suit is for property. The sole plaintiff perceives that the present petitioner could not be termed to be a legitimate child of his father. The mother of the plaintiff (Hiraben), who is alive, does not support this say of the plaintiff. She has, in no Page 4 of 6 C/SCA/4454/2014 ORDER uncertain terms, confirmed the second marriage of Umedbhai with Sushilaben and the birth of two children from the said wedlock. The present petitioner is one of those two children.
4.10 There are ample evidences on record, including contemporaneous record, such as degree certificate, passport etc. of the petitioner with this name. These documents are on record of this petition starting from page 295 onwards. It was also on record before the Court below. The Court below has therefore erred by rejecting the application of the present petitioner. This petition therefore needs to be allowed.
4.11 Since the controversy, in this petition is only with regard to the correct name of the petitioner, on the record of the Court below, other aspects are not required to be gone into, however, it needs to be observed that, there is substantial force in the submission of learned advocate for the petitioner that the original plaintiff has abused the process of law all throughout. This is over and above the original plaintiff abusing his own father and the lady who has stayed with the father of the plaintiff for about four decades. In this regard, reference also needs to be made to the order of this Court (Coram:
Honourable Ms.Justice Harsha Devani) dated 08.12.2014 on this petition and the order dated 15.06.2015 recorded on Miscellaneous Civil Application No.125 of 2015. The respondent No.1 has addressed the Court at length on facts. He has also referred to various sections, which need not be dealt with in this petition. He has also referred to various authorities, which are also not reflected in this order, in the facts noted above. Without deliberating further in that regard, it is held that the Court below fell in error while rejecting the application Page 5 of 6 C/SCA/4454/2014 ORDER Exh.261. The same needs to be set right by this Court.
5. For the reasons recorded above the following order is passed.
5.1 This petition is allowed.
5.2 The impugned order passed by the Principal Senior Civil Judge, Ahmedabad (Rural), dated 29.03.2011 rejecting the application Exh.261 in Special Civil Suit No.234 of 2000 is quashed and set aside.
5.3 The said application Exh.261 is allowed. The cause title of the Special Civil Suit No.234 of 2000 in the Court of the Principal Senior Civil Judge, Ahmedabad (Rural), shall be amended accordingly.
(PARESH UPADHYAY, J.) M O Bhati/87 Page 6 of 6