Gujarat High Court
Ashwinbhai Naranbhai Patel vs Parth Pravinbhai Patel & on 9 May, 2013
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
ASHWINBHAI NARANBHAI PATEL....Applicant(s)V/SPARTH PRAVINBHAI PATEL C/CA/7845/2011 CAV ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR JOINING PARTY) NO. 7845 of 2011 In APPEAL FROM ORDER NO. 441 of 2007 With CIVIL APPLICATION NO. 6928 of 2011 In CIVIL APPLICATION NO. 15331 of 2007 With CIVIL APPLICATION NO. 15331 of 2007 In APPEAL FROM ORDER NO. 441 of 2007 ================================================================
ASHWINBHAI NARANBHAI PATEL....Applicant(s) Versus PARTH PRAVINBHAI PATEL &
7....Respondent(s) ================================================================ Appearance:
MR YATIN OZA FOR MR TATTVAM K PATEL, ADVOCATE for the Applicant(s) No. 1 MR AS PARASRAMPURIA, ADVOCATE for the Respondent(s) No. 6 - 7 MR R.S. SANJANWALA FOR MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1 MR JR SHAH, ADVOCATE for the Respondent(s) No. 1 - 3 ================================================================ CORAM:
HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 09/05/2013 CAV ORDER
1. Heard the learned senior advocate Mr. R.S. Sanjanwala with learned advocate Mr. Dhaval Vyas on behalf of the appellant. Learned senior advocate Mr. Yatin Oza with Mr. Patel in the Civil Applications as aforesaid.
2. The appellant Parth Pravinbhai Patel has filed a Special Civil Suit No.399 of 2007 in the Court of learned Principal Senior Civil Judge of Ahmedabad (Rural), Mirzapur at Ahmedabad. The appellant is a plaintiff of Special Civil Suit No.388 of 2007. The said suit has been filed by the plaintiff/appellant for the relief of declaration, partition and perpetual injunction. In this suit, the plaintiff had filed an application for the grant of interim temporary injunction under the provisions of Order 39, Rule 1 and 2 read with the provisions of Section 151 of the Code of Civil Procedure. The plaintiff has prayed for the relief of interim injunction vide application Exhibit 5 that the defendants be restrained from interfering with the possession of the suit land and further, the defendants be restrained from alienating the suit land in any manner whatsoever in favour of third person. At the initial stage, the leaned Judge of the Trial Court has granted ex parte order of status-quo in favour of the plaintiff and against the defendants.
3. Thereafter, the application Exhibit 5 has been decided by considering the merits and demerits of the case by the learned Judge of the Trial Court vide judgment and order dated 4.12.2007. The learned Judge of the Trial Court has rejected the application Exhibit 5 filed by the plaintiff/present appellant for the grant of interim temporary injunction and also vacated the ex parte order of status-quo granted by the learned Judge of the Trial Court dated 19.10.2007.
4. Being aggrieved and dissatisfied by the judgment and order passed by the learned Judge of Trial Court below application Exhibit 5 dated 4.12.2007, the plaintiff of Special Civil Suit No.399 of 2007 has preferred and filed the present Appeal From Order under the provisions of Order 43, Rule 1(r) of the Code of Civil Procedure.
5. The appellant/plaintiff has filed one affidavit/purshis on 26.9.2012. As per the said affidavit filed by the appellant, the appellant has prayed to withdraw the appeal unconditionally.
6. Learned senior advocate Mr. Yatin Oza with Mr. Tatvam Patel have strongly objected the withdrawal of the Appeal From Order No.441 of 2007.
7. One Shri Ashwinbhai Naranbhai Patel has filed Civil Application No.6928 of 2011 in the said Appeal From Order No.441 of 2007, praying to be joined as party and must be given an opportunity of being heard. In short the applicant is opposing the withdrawal of the Appeal of the appellant i.e. Parth Pravinbhai Patel as well as substitution as appellant. It is an admitted position that Ashwinbhai Naranbhai Patel is an executor of Will executed by late Manguben wd/o. Rambhai Chhaganbhai Patel dated 1.6.1999. Under the said Will, late Manguben wd/o. Rambhai Chhaganbhai Patel has given the suit lands to the present plaintiff as the present plaintiff/appellant is a grandson of the executant of the Will i.e. Manguben. The present Special Civil Suit No.399 of 2007 has been filed by Parth Pravinbhai Patel himself.
The present Appeal has also been personally filed by Parth Pravinbhai Patel, who is the beneficiary of the Will executed by late Manguben wd/o. Rambhai Chhaganbhai Patel dated 1.6.1999.
8. Any litigant has a right to unconditionally withdraw the proceeding. In the present case, the parties to the present Appeal have not objected to the withdrawal. But an application has been filed by Shri Ashwinbhai Naranbhai Patel who is the plaintiff No.2 in the suit, praying that he be joined as an applicant in the Appeal. Effectively he seeks substitution as appellant in place of present appellant who wishes to withdraw the Appeal. The said Ashwinbahi is the executor of the Will of late Manguben, who has bequeathed her share in the lands in question to the appellant, the beneficiary under the Will. The appellant along with Ruchir Patel are the beneficiaries under the Will. What is pertinent to note is that the appellant Shri Ashwin Patel could have filed a substantive appeal against the order, which has not been done. Moreover, though the said Ashwinbhai was not made a party in the present Appeal, he did not apply for being joined as party. It is not the case of Ashwinbhai that he was not aware about the pendency of the Appeal From Order before the High Court. Only when the beneficiary under the Will has sought leave to withdraw, he has come forward with such an application, which is grossly misconceived. The said Ashwinbahi can file a separate Appeal, if law permits him to do so. Any Appeal by him would be beyond limitation and would have to be accompanied by an application for condonation of delay. Instead of following such course, the present application has been filed to overcome the delay and other issues which would arise in the Appeal that my be filed by the executor.
9. It has been laid down by the Hon ble Supreme Court of India in the case Bijayananda Patnaik V. Satrughna Sabu and Others reported in AIR 1963, Supreme Court, 1566, that an appellant is entitled as of right to withdraw his Appeal provided the respondent has not acquired any interest there under. Here, in the present case, no such interest is acquired and hence, according to the well settled principle of law, the present appellant Parth Pravinbhai Patel is entitled to withdraw the Appeal unconditionally filed by him. The unconditional withdrawal of Appeal is hereby granted.
10. It is the strong and substantial argument on behalf of applicant of Civil Application No.6928 of 2011, Ashwinbhai Naranbhai Patel that the appellant of Appeal From Order No.441 of 2007 Parth Pravinbhai Patel has filed the present Appeal malafidely as applicant Ashwinbhai Naranbhai Patel has not been joined as party though the applicant Ashwinbhai Naranbhai was a party in capacity of plaintiff No.2 in original Special Civil Suit No.399 of 2007. It is the argument of the learned advocate of the applicant that the Appeal has been filed with a mala fide intention of misguiding this Court and with mala fide intention to frustrate rights of present applicant in respect of the suit land, the appellant Parth Pravinbhai Patel did not join the applicant even as pro-forma respondent and the appellant has not joined a copy of amended plaint with the Appeal memo. It is the argument of the learned advocate of the appellant that this is a fraud which has been practiced upon this Hon ble Court as well as upon applicant, Ashwinbhai Naranbhai Patel by the appellant and solely on this count the Civil Application No.6928 of 2011 is required to be allowed. The learned advocate on behalf of the applicant relied upon the following reported judgments :
(i) 2005(4) SCC 605 MCD V. State of Delhi and Another.
(ii) (1994) 1 SCC 1 S.P. Chengalvaraya Naidu (dead) by LRS. V. Jagannath (dead) by LRS. & Another.
(iii) 2005(7) SCC 605 Bharuao Dagdu Paralkar Vs. State of Maharashtra & Others.
(iv) 2003(8) SCC 311 Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education and Others.
(v) 2007(4) SCC 211 A.V. Papayya Sastry and Others Vs. Govt. of A.P. and others.
(vi) 2000(3)SCC 581 United India Insurance Co. Ltd. Vs. Rajendra Singh and Others with United India Insurance Co. Ltd. Vs. Sanjay Singh and others.
(vii) 2008(3) SCC 440 Food Corporation of India and Another Vs. Seil Ltd. & others.
(viii) 1996 (5) SCC 550 Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.
(ix) 2008 (12) SCC 353 Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat & Ors.
(x) AIR 1930 Madras 218
(xi) 1922 Patna 489
(xii) AIR 1933 Madras 824
(xiii) AIR 1956 Madras 15 (Vol. 43 C6 Jan) Learned advocate for the applicant has drawn the attention to the High Court Rules 32-A and Advocate Check List Form B .
11. It is further argument of the learned advocate of the applicant that these reported judgments lay down the law to the effect that fraud vitiate everything. Not only that, they also lay down that withholding of vital document or making false representation before the Court or suppression before the Court also amounts to fraud. On the other hand, it is the argument of the learned advocate of the appellant Parth Pravinbhai Patel that no question arise to consider the allegation of the applicant Ashwinbhai that the appellant Parth Pravinbhai Patel has committed fraud with the Court and with the applicant. It is submitted on behalf of the appellant Parth Pravinbhai Patel that the order to join the applicant in capacity of plaintiff No.2 in original suit has been annexed with the plaint at page 290 and the amended plaint has also been annexed at page 294. Not only that, the appellant Parth Pravinbhai Patel has not gained anything by this act and no injury has been caused to the applicant Ashwinbhai. Unless and until the appellant gains something by misrepresentation or caused some injury upon the existing rights of other side, then only the fraud can be said to have been committed. The arguments advanced by the learned advocate on behalf of the appellant Parth Pravinbhai Patel is much appealable . If the allegation of the fraud as argued by the learned advocate on behalf of the applicant Ashwinbhai Naranbhai Patel would be considered, there would be no question of committing fraud by the appellant Parth Pravinbhai Patel. This is a matter of record and the appellant has produced the copies of order of joining the present applicant has produced the copies of order of joining the present applicant in capacity of plaintiff No.2 before the Trial Court in original suit and also annexed the copy of the amended plaint respectively at page No.290 and 294 and it is also an undisputed fact that the present appellant Parth Pravinbhai Patel has acquired or obtained nothing. Under these circumstances, as clarified by the learned advocate of the appellant Parth Pravinbhai Patel that it is a bona fide mistake on the part of the appellant. As such it is not the allegation that the appellant Parth Pravinbhai Patel had adverse interest to that of the applicant Ashwinbhai Patel and therefore, non-joinder does not appeared to be for taking any undue benefit against the interest claimed by Ashwinbhai Patel, but in view of the issue consider by this Court in this reasoned order, question of fraud cannot be established so the said issue cannot be considered. It is submitted by the learned advocate that other side has committed fraud, but here first of all the meaning of fraud is required to be considered.
Normally, the meaning of fraud is to cheat the person with a view to gain something. The meaning of fraud is required to be elaborated here under :
12. Fraud means an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of court of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not true. The expression fraud involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. As per Concise Oxford Dictionary, Word Fraud means a criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. Word Fraud means deliberate deception, treachery or cheating which is intended to gain certain advantage. Fraud means and includes any of the following acts committed by a party to a contract or with his connivance, or by his agent with intent to deceived another party thereto or his agent, or to induce him to enter into the contract.
(1)the suggestion as a fact, of that which is not true, by one does not believe it to be true;
(2)the active concealment of a fact by having knowledge or belief of the fact;
(3)a promise mad without any intention of performing it;
(4)any other act fitted to deceive;
(5)any such act or omission as the law specially declares to be fraudulent.
Even the meaning of fraud contains the words like injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind reputation or such others. It is a noneconomic or nonpecuniary loss.
13. In various decisions the meaning of fraud is defined by the Hon ble Supreme Court. Therefore, looking to the averments made in the application, it is nowhere transpired as to what and in which manner the fraud is committed by the opponents.
14. It appears that the clarification made by the appellant Parth Pravinbhai Patel is acceptable and there is no element of fraud committed by present appellant Parth Pravinbhai Patel with this Court or with the applicant. In background of these facts, the reported above stated judgments of the Hon ble Supreme Court of India relied upon by the learned advocate on behalf of the applicant are not applicable in adjudication of the Civil Application No.6928 of 2011.
15. The other argument of learned advocate for the applicant Ashwinbhai Naranbhai Patel that under the provisions of Order 41, Rule 4 the appellant cannot be allowed to withdraw the Appeal. It is submitted on behalf of the applicant Ashwinbhai that when there are more than one plaintiffs or defendants and the decree appealed from proceed on any ground common to all, the plaintiffs or defendants, any one of the plaintiff or defendant may appeal from the whole decree and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs and defendants as the case may be. It is the argument of the other side learned advocate on behalf of the appellant Parth Pravinbhai Patel that the provisions of Order 41, Rule 4 only can be made applicable when the circumstances arises for the Appellate Court to allow the Appeal and that too against the final judgment and decree passed by the Trial Court. The learned advocate on behalf of appellant Parth Pravinbhai Patel relied upon the reported judgment in case of Ganesh Cooperative Housing Society Ltd. & Others Vs. Ishwarbhai Keshavbhai Patel & Others, 2001(3) G.LH. 702 (2002(1) G.L.R. 159). It is laid down by this Court that Appeal is provided under Order 43, Rule 1(r) of the Code of Civil Procedure against the order passed by the Trial Court in exercise of power under the provisions of Order 39, Rule 1 and 2 of the Code of Civil Procedure. The scope of this Appeal is limited only to the order impugned below an application for temporary injunction. The Appellate Court cannot exercise powers under the provisions of Section 146 of the Code of Civil Procedure, as the said Appeal is not continuation of suit as the suit is already pending before the Trial Court for final adjudication. The principle laid down in the aforesaid reported judgment by this Court is completely applicable to the facts of the present case. Not only that, in the present Appeal, this is not the stage in which this Court has to consider the provisions of Order 41, Rule 4 of the Code of Civil Procedure. According to this Court, in case of withdrawal of Appeal by the appellant under which the orders of Trial Court have been under challenge and the suit is not finally adjudicated by the Trial Court, the question does not arise for the Appellate Court to consider the provisions of Order 41, Rule 4 of the Code of Civil Procedure. In view of this reasoning, the arguments advanced by the learned advocate on behalf of the applicant Ashwinbhai Naranbhai Patel are not acceptable by this Court.
16. The learned advocate on behalf of the applicant relies upon the reported judgment in case reported in AIR 1986 Madras 367 and argued that any party in partition suit can seek transposition from plaintiff to that and/or of defendant and visa versa. The principle laid down by the Madras High Court can be made applicable during the course of trial before the Trial Court. The principle laid down in the said reported judgment by the Madras High Court cannot be made applicable in an Appeal filed under the provisions of Order 43, Rule 1(r) of the Code of Civil Procedure. The transposition of defendant as plaintiff is only permissible when the circumstances do not arise. The transposition of defendant in capacity of plaintiff can be only permitted when the plaintiff withdraws or abandons the suit under the provisions of Order 23, Rule 1 of the Code of Civil Procedure and substantial question is required to be decided. Here, in the present case, no such exigencies have been arisen. The applicant has not been joined in capacity of defendant either in the present Appeal or in original suit. Whatever the rights claimed by the present applicant Ashwin Naranbhai Patel are in existence, it will be decided at the time of final adjudication of the suit by the Trial Court. The applicant himself is a plaintiff No.2 in the original suit and hence, the present applicant has already opportunity to prove his right whichever the applicant has claimed in this present Appeal. The rights claimed by the applicant Ashwinbhai Naranbhai Patel are neither in question nor required to be decided in the present Appeal. The applicant Ashwinbhai Naranbhai Patel had independent right to challenge the order passed by the Trial Court. If the applicant himself does not exercise his right to challenge the judgment, how the applicant is entitled to claim for the adjudication of his rights after lapse of more than 5 or 6 years period. This Court cannot allow the applicant Ashwinbhai Naranbhai Patel to knock the doors of this Court from the real side.
17. The case made out by the applicant to join him as party in the present Appeal From Order does not fall or cover under the ambit of provisions of Order 1, Rule 10(2) of the Code of Civil Procedure. The applicant must require to show that how the adjudication of the suit or proceedings in his absence are likely to be affected adversely to the existing rights of the applicant.
18. It is also one of the arguments of the learned advocate on behalf of the applicant Ashwinbhai Naranbhai Patel that there is a violation of Rule 32(a) of the Gujarat High Court Rules. According to this Court, there is no violation of the Gujarat High Court Rules 32(a) which may cause prejudice to the existing rights of the applicant Ashwinbhai Naranbhai Patel.
19. In the result, this Court passes following order:
The appellant Parth Pravinbhai Patel is permitted to unconditionally withdraw the present Appeal From Order No.441 of 2007. The Appeal From Order is disposed of as withdrawn. The Civil Application No.15331 of 2007 is disposed of, as the Appeal From Order is withdrawn.
Civil Application Nos.6928 of 2011 and 7845 of 2011 filed by Ashwinbhai Naranbhai Patel is hereby dismissed.
The costs of both the litigation shall be borne by the parties themselves.
(Z.K.SAIYED, J.) YNVYAS After pronouncement of the order, learned senior advocate Mr. Yatin Oza for learned advocate Mr. Patel requests to stay of the order for a period of six weeks, as the applicant wants to file Special Leave Petition (SLP) before the Hon ble Supreme Court. Learned senior advocate Mr. R.S. Sanjanwal for Mr. Vyas has opposed the same.
However, considering the facts and circumstances of the case, request is required to be considered. Hence, stay of the order is granted for a period of six weeks.
(Z.K.SAIYED, J.) YNVYAS Page 12 of 12