Gujarat High Court
Pravinchandra Himmatlal Doshi Trustee ... vs Modh Vanik Samaj Sewa Trust on 27 June, 2018
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8874/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8874 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PRAVINCHANDRA HIMMATLAL DOSHI TRUSTEE OF MODH VANIK
SAMAJ
Versus
MODH VANIK SAMAJ SEWA TRUST
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Appearance:
MR CHINMAY M GANDHI(3979) for the PETITIONER(s) No. 1
MR MB GANDHI(326) for the PETITIONER(s) No. 1
MR. DHAVAL DAVE, LD. SR ADVOCE with MR JIGAR M PATEL(3841) for
the RESPONDENT(s) No. 1,2
MR. R.D.KINARIWALA(6146) for the RESPONDENT(s) No. 3
RULE SERVED(64) for the RESPONDENT(s) No. 3,4,5,6
UNSERVED EXPIRED (R)(69) for the RESPONDENT(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 27/06/2018
ORAL JUDGMENT
[1] The present petition has been filed by original defendant No.5 of Regular Civil Suit No.2277 of 2006 before the City Civil Court at Ahmedabad. Challenge is to the order dated 29.02.2012 passed by the Chamber Judge of the City Civil Page 1 of 9 C/SCA/8874/2012 JUDGMENT Court below application Exh. 89/90.
[2] The facts in brief are as under:-
[3] One Anantrai Narandas Shah filed Regular Civil Suit No.2277 of 2006. It was the case of the plaintiff that two properties namely Madhur Community Hall and one Narayandas Laxmichand Vidyarthi Bhuvan are properties of Modh Vanik Samaj Seva Trust. The plaintiff of the plaint had made statements to the effect that the defendant No.7- Ramdevpir co-operative Housing Society Limited and its partners were not entitled to purchase the properties or carry out construction as such properties belong to the trust. It was the case of the plaintiff that the Chairman of the Trust, defendant No.2 is not entitled to issue any allotment letters or execute documents in favour of Co-operative Housing Society Limited and that the allotment letter should be cancelled. The suit was filed on 24.11.2006 by the sole plaintiff Shri Anantrai Narandas Shah.
In the plaint so filed, specific pleading was made that the present petitioner as defendant No.5 was so added as defendant No.5 as he was not available for signing the plaint and therefore, he had to be made defendant. The averment in the plaint further suggests that the defendant No.5-present petitioner supported the plaintiff.
[4] The defendant No.5-petitioner herein therefore, moved an application under Order XXIII Rule 1A of the Code of Civil Procedure, 1908 (for short "the Code"). Such application was made at Exh.89/90. It was the case of the petitioner that since the plaintiff-Anantrai Narandas Shah had died on 13.09.2009 and since specific averment was made in the plaint that the Page 2 of 9 C/SCA/8874/2012 JUDGMENT applicant supported the case of the plaintiff, the defendant No.5-applicant be transposed as a plaintiff in the suit as the right to sue survives.
[5] By the order under challenge in this petition, the learned trial Judge rejected such application. The learned trial Judge while doing so, observed that the application was not in accordance with law. It was observed in the order under challenge that the plaintiff had died on 13.09.2009 and till date i.e. on 29.02.2012, procedure stipulated under Order XXII Rule 3 of the Code was not carried out. The trial Court further observed that the defendant had not filed written statement making his stand clear whether he has supported the plaintiff and that his interest was identical. However, according to the learned trial Judge, it was not possible for granting prayer to transpose the defendant No.5 as plaintiff as Order XXIII Rule 1A only deals with a situation where transposition is possible when the plaintiff abandons or withdraws suit. Therefore, not only should the plaintiff have withdrawn the suit or abandoned the suit, but also he should be an alive having identical interest. None of these conditions were attracted and therefore, the application was rejected. The trial Court however, observed that in absence of carrying out procedure under Order XXII Rule 3, the suit stood abated.
[6] This order of the trial Court is under challenge.
[7] Mr. M.B.Gandhi, learned advocate for the petitioner- defendant No.5 has taken me through the avements made in the plaint and suggested that the suit was essentially in respect of trust's properties and was so filed by one of the trustees. It was therefore, natural that in case of death of the Page 3 of 9 C/SCA/8874/2012 JUDGMENT trustees, supporting defendant-trustee can step into the shoes of the plaintiff. Shri Gandhi further contended from the averments made in the plaint that a specific statement was made in paragraph No.7 of the plaint that the suit was filed in a representative capacity under Order I Rule 8 of the Code and therefore, there was no abatement. He further contended that the defendant is ready and willing to proceed as trustee and therefore, transposition should have been allowed.
[7.1] Shri Gandhi, further submitted that if the application is perused, though it was titled as one under Order XXIII Rule 1A read with Order XXII Rule 10 of the Code, in the body of the application, request was made that it also be treated as one under Order I Rule 10 of the Code. Drawing my attention to the provision under Order I Rule 10(2) of the Code, Shri Gandhi submitted that the Court can at any stage of the proceedings either on an application or without application join or strike out plaintiff or defendant whose presence is necessary before the Court. According to Shri Gandhi, therefore, when plaintiff died, it became necessary for the defendant No.5 to transpose as a plaintiff.
[7.2] Shri Gandhi further submitted that even reading the provisions of Order XXII Rule 10 of the Code, it was a case where since it was the case in the plaint with regard to the trust properties, there was assignment of interest and therefore, the petitioner-defendant No.5 could have been brought on record and the suit would have been continued.
[8] Shri Gandhi relied upon the decision of the Hon'ble Supreme Court in the case of Charan Singh and another v/s. Darshan Singh and others, reported in AIR 1975 SC Page 4 of 9 C/SCA/8874/2012 JUDGMENT 371 in support of his submission that when the suit is filed in a representative capacity, in case of the death of plaintiff, the suit will not abate.
[9] He has drawn support to the judgment in the case of G.Christhudas and another v/s. Anbhiah (Dead) and others, reported in AIR 2003 SCA 1590 to submit that in a suit of representative capacity, an application for impleadment can be made within a period of three years as so prescribed under Article 137 of the Limitation Act. Reliance is also placed upon the judgment of the Kerala High Court in the case of K.S.Abraham v/s. Mrs. Rosamma and others, reported in AIR 1989 KERALA 167 to suggest that under Order I Rule 10(2) of the Code, a party can be added if he has direct interest in the suit property to enable the Court effectually adjudicate on suit. The judgment of the Rajasthan High Court in the case of Talib Hussain v/s. Peer Azhar Hussain, reported in AIR 1998 Rajashan 150 was relied on by Shri Gandhi to contend that even it may be imperative that the party is added to a suit if it serves the ends of justice.
[10] For the respondents, Shri Dhaval Dave, learned senior counsel assisted by learned advocate Mr. Jigar M. Patel have appeared for the respondent Nos.1 and 2. Shri R.D.Kinariwala, learned advocate has appeared for the respondent No.3. Inviting my attention to the title of the application, Shri Kinariwala has submitted that admittedly the application was under Order XXIII Rule 1A read with Order XXII Rule 10 of the Code. According to him, when no rights were assigned in favour of the defendant No.5, application under Order XXII Rule 10 of the Code was not maintainable.
Page 5 of 9C/SCA/8874/2012 JUDGMENT [10.1] Shri Kinariwala, learned advocate further contended
that the suit was by a person under his personal capacity and not as trustee. On the death of the plaintiff on 13.09.2009, no application was moved within the prescribed period of 90 days and therefore, the learned trial Judge has right in contending that the suit had abated. Inviting my attention to the provisions of Order XXII Rule 3(2) of the Code, Shri Kinariwala submitted that the mandate of the rule was clear inasmuch as once no application was made within the prescribed period, the suit shall abate.
[11] Shri Kinariwala further contended that the learned trial Judge was right in observing that the provisions of Order XXIII Rule 1A was not applicable in the facts of the case.
[11.1] Drawing my attention to the provisions of Order I Rule 8 of the Code, Shri Kinariwala pointed out that if the suit had to be filed in a representative capacity, such suit had to be filed with the permission of the Court. In case such permission or direction was given, notice of the institution of the suit to all the persons so interested was to be made. None of these requisites were shown to exist and therefore, the suit admittedly was not one under Order I Rule 8 of the Code.
[12] Shri Dhaval Dave, learned senior counsel appearing with learned advocate Shri Jigar Patel has also drawn my attention to the provisions of Order XXIII Rule 1A of the Code and contended that no such circumstances as required under the rule existed. Reliance is also placed on the judgment of the Madras High Court in the case of Manickam alias Chennappan v/s. Munuswamy, reported in (2016) 4 LW 56 and attention to para-14 of the judgment is drawn, as a Page 6 of 9 C/SCA/8874/2012 JUDGMENT result of which Shri Dave has submitted that when no written statement was filed by the defendant making his stand clear whether he supported the plaintiff, no transposition was possible.
[13] Having considered the submissions of the learned counsel for the respective parties and having perused the order of the learned trial Judge, in exercise of powers under Article 227 of the Constitution of India, the question for this Court is whether the learned Judge has committed an error or that the order is not in accordance with law.
[14] Shri Gandhi has taken me through the detailed averments made in the plaint to make his point good that the suit essentially was pertaining to suit property and therefore, defendant No.5 as a trustee on the death of the plaintiff, should have been transposed as a plaintiff. Reading the application and the contents therein make it clear that the application was moved under the provisions of Order XXIII Rule 1A of the Code. Reading such rule would suggest that the transposition is permissible when defendant applies for being so transposed as a plaintiff, where suit is withdrawn or abandoned by plaintiff under Rule 1A. I do not see any fault in the reasoning of the learned Judge to hold that such rule does not apply. Reading of the application made for transposition shows that the cause of making such application was the death of plaintiff on 13.09.2009. The suit at that stage was still pending. Neither was the suit withdrawn or abandoned by the plaintiff nor was application made when the plaintiff was alive. The sole ground, therefore, on which such application was made was the death of the plaintiff.
Page 7 of 9C/SCA/8874/2012 JUDGMENT [15] Even nothing is stated in the application nor that the reading of the plaint has suggested that the rights in the suit were assigned to the defendant No.5, the petitioner was sought to be transposed. It was therefore, not a case even governed under the provisions of Order XXII Rule 10 of the Code.
[16] The learned trial Judge has held that the suit abated in absence of any application for bringing heirs on record. Reading the provisions of Order XXII Rule 3 of the Code simply makes it clear that if an application is not made within the time stipulated, the suit shall abate. It is not disputed that from the death of the sole plaintiff on 13.09.2009 till the date when the order impugned was passed, no application under Order XXII Rule 3 was moved. The natural consequence therefore, was abatement of suit.
[17] Though Mr. Gandhi has relied on the authorities as above to suggest, based on the averments made in the plaint that the suit was under Order I Rule 8 and therefore, would not abate, I will not agree with the submissions of learned advocate for the petitioner as nothing has been brought on record so as to show whether permission as stipulated under Order I Rule 8 was available or subsequent to such permission, public notice of such a suit being one under Order I Rule 8 was issued of the suit being one under the representative capacity. The suit admittedly abated on failure to make an application in accordance with the provisions of Order XXII Rule 3 of the Code.
[18] Even I am not in agreement with the submissions of learned advocate Shri Gandhi with regard to applicability of the Page 8 of 9 C/SCA/8874/2012 JUDGMENT provisions of Order I Rule 10 of the Code. Reading the provisions under Order I Rule 10(2) of the Code would reveal that the Court may at any stage of the proceedings either upon or without the application of either party 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, and whose presence is necessary, be joined. This rule therefore, also does not envisage the situation either of transposition or bringing on record a successor to the suit on the death of the sole plaintiff. Rule, therefore squarely does not apply to the facts of the case.
[19] The learned trial Judge has also observed that in absence of any interest made apparent by the defendant No.5 by filing written statement, it was not clear whether he was supporting the plaintiff. As held in the case of Manickam alias Chennappan (Supra)of Madras High Court, application for transposition can only be made in the suit without making plea in the main suit by way of a written statement. In absence of written statement filed by the petitioner-defendant No.5 herein, there is no reason why the learned Judge's findings can be faulty.
[20] In view of the aforesaid reasons, I do not find any reason to interfere with the order passed by the learned trial Court. The petition is accordingly dismissed. Interim relief, if any, stands vacated. Rule is discharged.
(BIREN VAISHNAV, J) Siddharth Page 9 of 9