J.C. Upadhyaya, J.
1. The petition filed under Article 227 of the Constitution of India contains the following prayers:
18.A. This Honorable Court be pleased to issue a writ of or in the nature of certiorari quashing and setting aside the order dated 10-9-2007 passed below Exh. 29 in Special Civil Suit No. 89 of 2006, by the learned 8th Additional Senior Civil Judge, Gandhinagar,
B. Pending admission and final hearing of this petition, the Honorable Court may be pleased to stay the execution and operation and implementation of the order dated 10-9-2007 passed below Exhibit 29 in Special Civil Suit No. 89 of 2006, by the learned 8th Additional Senior Civil Judge, Gandhinagar,
C. Pending admission and final hearing of this petition, the Honorable Court may be pleased to stay the further proceedings/hearing of Special Civil Suit No. 89 of 2006, pending before the learned 8th Additional Senior Civil Judge, Gandhinagar.
2. The facts leading to the petition, in brief, are as under:
2.1. The deceased father of the respondent No. 1 herein named Mafaji Motiji Thakore filed Special Civil Suit No. 89 of 2006 in the Court of the learned Senior Civil Judge, Gandhinagar against the respondent No. 2 herein as well as deceased father of respondent No. 3, namely Pruthvirajsinh Nodhubha Jadeja, wherein the relief was prayed for to declare the sale-deed dated 29-1-2005 executed by respondent No. 2 herein (original defendant No. 1) in favour of respondent No. 3 herein (original defendant No. 2) as illegal and void ab-initio and further prayed for the relief that the said document be cancelled. In the said suit, the original plaintiff (respondent No. 1 herein) filed an application for temporary injunction restraining the respondent Nos. 2 and 3 herein from transferring, selling and parting with the aforesaid suit property bearing Block No. 868, the property for which the sale-deed sought to be cancelled, was executed. There is no dispute that the trial Court allowed said interim injunction application. It is the case of the petitioner that on 23-3-2007, the father of the respondent No. 1 herein Mafaji Motiji Thakore, who was original plaintiff in the aforesaid suit, executed a registered sale-deed in favour of the petitioner pertaining to the same subject-matter of the suit being the suit land for the consideration of Rs. 10 lacs. It is the case of the petitioner that after the demise of original plaintiff Mafaji, now the heirs of deceased Mafaji, the respondent No. 1 herein, filed a pursis before the trial Court permitting them to withdraw the suit unconditionally. The pursis came to be filed by the respondent No. 1 herein expressing his intention to withdraw the suit unconditionally on 19-7-2007. However, before that, in the suit the petitioner herein had filed an application on 2-7-2007 requesting the trial Court to permit him to be impleaded in the suit as plaintiff No. 2. Said application came to be dismissed by the learned Civil Judge by his order dated 10-9-2007. The said order is challenged in this petition.
3. Learned Senior Advocate Mr. A. J. Patel for learned Advocate Mr. Darji for the petitioner submitted that the trial Court committed illegality in rejecting said application of the present petitioner. It is submitted that the petitioner is not a stranger, but he had purchased the suit land by sale-deed dated 23-3-2007 executed by none other than the original plaintiff Mafaji. It is submitted that now the original parties to the suit have colluded with each other and the original plaintiff has expressed his intention to withdraw the suit by filing a pursis to that effect on 19-7-2007. It is submitted the petitioner, third party is very much interested in the subject-matter of the suit and especially the relief claimed by the original plaintiff in the suit. The relief prayed for by the original plaintiff in the suit is cancellation of the sale-deed executed by original defendant No. 1, the so-called Power of Attorney holder of original plaintiff in favour of the original defendant No. 2. It is submitted that the petitioner third party is also interested not only in the cause of action pleaded in the suit, but even in the relief prayed for by the original plaintiff in the suit. Learned Senior Advocate Mr. Patel submitted that the petitioner is not objecting to the withdrawal pursis in the sense that if the original plaintiff is not interested to proceed further with the suit, he may not be compelled by the Civil Court to proceed with the suit and the Civil Court should permit him to get himself detached from the suit and the present petitioner who intends to be joined in the suit as plaintiff No. 2, shall proceed further with the suit because he is not only interested in the cause of action pleaded in the suit, but even in the relief prayed for by the original plaintiff in the suit. Therefore, it is submitted that the petition be allowed and the impugned order passed by the Civil Court be set aside and the petitioner be permitted to be joined in the suit as plaintiff No. 2.
4. Learned Advocate Ms. Trusha K. Patel for the respondent No. 1 (the original plaintiff) vehemently opposed this petition and submitted that the petitioner cannot be said to be bona fide purchaser of the suit land for value without notice. The suit was pending and during the pendency of the suit, he allegedly purchased the suit land. It is further submitted that to have unconditional withdrawal of the suit is a statutory right of the plaintiff. It is further submitted that the cause of action pleaded by the plaintiff in the suit cannot be said to be applicable even to the case of the petitioner. The petitioner's cause of action may arise subsequent to the date of his so-called purchase of the suit land. It is further submitted that in the suit, the Court-fees came to be paid by the original plaintiff, and therefore, now the third party cannot be impleaded as plaintiff No. 2 in the suit without payment of Court-fees. It is further submitted that at present the suit is not permitted to be withdrawn and the relief prayed for by the petitioner in his application before the trial Court is to permit him to be impleaded as co-plaintiff i.e., plaintiff No. 2. Therefore, at present, if the application would be allowed, there would be two plaintiffs and the rights and interests of both the plaintiffs are conflicting to each other, which situation cannot be permitted to prevail in a civil suit. It is submitted that the trial Court rightly observed that if at all the petitioner is interested in the subject-matter of the suit, he can file separate suit. Thus, the remedy is available to the petitioner. Therefore, it is submitted that the petition be dismissed.
4.1. None appeared for respondent No. 2.
5. Learned Advocate Mr. T. K. Patel for the respondent No. 3 (original defendant No. 2) also vehemently opposed the petition and submitted that the petitioner can never be said to be interested in the subject-matter of the suit. His cause of action is totally different than the cause of action pleaded by the original plaintiff in the suit. It is submitted that even the original defendant No. 2 has paid the consideration, and therefore, the question of payment of consideration, if it applies to the petitioner, the same question equally applies to the defendant No. 2. It is submitted that the allegation of collusion levelled against the parties to the suit by the petitioner is not well founded. The parties to the suit have right to settle their dispute and if they arrive at particular settlement, that cannot be labeled as collusion. It is further submitted that even the plaintiff has ratified the sale-deed executed by defendant No. 1 in favour of defendant No. 2 by executing fresh document dated 6-7-2007. It is submitted that even the question of limitation will come into picture if at all the petitioner is permitted to be joined as one of the plaintiffs. Even his relief to be joined as one of the plaintiffs is outright time-barred. Therefore, it is submitted that in any respect the petitioner cannot be permitted to be joined as one of the plaintiffs in the suit. The petition, therefore, deserves to be dismissed.
6. I have perused the impugned order passed by the trial Court and the relevant papers produced by both the sides in this petition. There is no dispute that the father of the respondent No. 1 named Mafaji filed Special Civil Suit No. 89 of 2006 against the respondent No. 2 herein and the father of the respondent No. 3 herein. In the said suit, in Para 7 regarding the cause of action, it is stated that the original plaintiff has not authorized the original defendant No. 1 by way of Power of Attorney to alienate any property. That despite this, the original defendant No. 1 entered into an agreement of sale with original defendant No. 2. That therefore, said transaction is illegal and void. In Para 8A of the plaint, consequential relief was prayed to declare said sale-deed dated 29-1-2005 as illegal and void ab-initio and for cancellation of the sale transaction. It further transpires that the original plaintiff had filed an application for temporary injunction in the suit against both the defendants and the Civil Court granted the temporary injunction restraining both the defendants from further transferring and alienating the suit property. It transpires that during the pendency of the suit, both the original plaintiff Mafaji and the original defendant No. 2 Prithvirajsinh expired, and therefore, their heirs were brought on record in the suit.
6.1. The heirs of the deceased plaintiff filed a pursis in the suit on 19-7-2007 stating that the parties have settled their dispute and they do not desire to proceed further with the matter and the suit be permitted to be unconditionally withdrawn. The Civil Court kept said pursis for hearing. It further transpires that on 2-7-2007 the present petitioner had filed application before the trial Court praying for the relief that he may be permitted to be impleaded in the suit as plaintiff No. 2. Now, considering the facts and circumstances of the case and the arguments advanced on behalf of both the sides, first of all it is hereby made clear that though both the sides argued at length touching the merits of the case, but I am of the opinion that it would not be just, proper and reasonable for this Court to discuss merits of the case at this stage in this judgment.
7. With above observation, if the case of the petitioner is considered, he comes before the trial Court by filing the application stating that the deceased plaintiff had sold the suit land to him by executing sale-deed dated 23-3-2007. In this context, considering the suit as it is filed by Mafaji, the original plaintiff, the original plaintiff challenged the sale-deed executed by the defendant No. 1 in the capacity of Power of Attorney holder of plaintiff in favour of the defendant No. 2 on 29-1-2005. Thus, prima facie the situation is that even the petitioner can be said to be interested to see that the said sale-deed dated 29-1-2005 is declared as void ab-initio and is cancelled. If the sale-deed dated 29-1-2005 stands, then the subsequent sale of the suit land made to him on 23-3-2007, shall be materially affected. Thus, ex-fade, it can safely be said that at least the petitioner is interested in the cause of action of the suit as well as in the relief prayed for by the original plaintiff in the suit. The question as to whether the original defendant No. 2 can be said to be a bona fide purchaser for value without notice or whether the petitioner can be said to be a bona fide purchaser for value without notice is a question of evidence. Therefore, in this petition that question cannot be dealt with.
7.1. Thus, considering the above discussion, at this stage, it can safely be said that the third party petitioner can never be termed as a stranger, but he is interested in the Us.
8. So far as the question of unconditional withdrawal of the suit is concerned, needless to say that an unwilling litigant cannot be compelled to continue with the litigation. Under such circumstances, if the original plaintiff (the respondent No. 1 herein) desires to withdraw the suit unconditionally, he cannot be restrained. However, the situation will arise that only he himself can be detached from the litigation. It would amount to withdrawal from the suit. The petitioner is interested in the litigation and if the petitioner is permitted to be joined as the plaintiff No. 2 in the suit, he can proceed further with the suit.
9. Learned Sr. Advocate Mr. Patel relied upon a decision rendered in the case of Amit Kumar Shaw v. Farida Khatoon reported in : 2005 (11) SCC 403. In the said case Hon'ble the Apex Court not only discussed the provisions contained under Order 1, Rule 10 and under Order 22, Rule 10 of the Civil Procedure Code (C.P.C.), but even regarding the effect of bar of Section 52 of the Transfer of Property Act (T.P. Act) and observed that in a suit, a transferee cannot be joined as or right, but Court has discretion to do so. Said transferee can be joined as proper party if his interest in the subject-matter of the suit is substantial and not just peripheral, though the plaintiff has no obligation to join such transferee. However, joinder of party cannot depend solely on whether he is interested in the suit property, but also depends as to whether right of a person is affected if he is not joined. It is further observed that no detailed inquiry is necessary at the stage of granting leave under Order 22, Rule 10 of the C.P.C. and prima facie satisfaction of the Court will do at this stage. Question of validity of assignment or devolution can be considered at final stage of the proceedings. Application under Order 22, Rule 10 of the C.P.C. can be made to appellate Court even though devolution of interest occurred at trial stage.
9.1. Thus, considering the above principles established by Hon'ble the Apex Court, those principles clearly apply at this stage to the facts and circumstances of the case. As stated above, on behalf of the respondents, a contention was raised that since the alleged sale to the petitioner came to be made pending the suit, and therefore, it is hit by Section 52 of the T.P. Act. That aspect of the matter is also dealt with by Hon'ble the Apex Court in the ruling. Considering Para 15 of the said judgment, Hon'ble the Apex Court has discussed the doctrine of 'lis pendens'. In Para 16 of said judgment, considering the doctrine, Hon'ble the Apex Court has observed that though the plaintiff is under no obligation to make lis pendens transferee as party, under Order 22, Rule 10 an alienee, pendente lite may be joined as party. It is further observed that as already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests.
10. Therefore, considering the aforesaid principles established by Hon'ble the Apex Court, the petition deserves to be allowed.
11. However, on behalf of the respondents reliance was placed on the judgment rendered in the case of Patel Dineshbhai Mohanbhai v. Legal Heirs of Naranbhai Ramdas reported in : 2005 (1) GLR 116 : 2005 (1) GLH 505. Considering the facts of said case, it clearly transpires that third party had already filed a separate suit and simultaneously filed an application in one pending suit to implead him as party to said suit. The request was made to be impleaded as party in the suit after about more than 10 years. There was no common cause or common interest in the litigation found by the Court so far as the third party was concerned. Therefore, it was observed that no prejudice would be caused to the third party if his request to be impleaded as party would be turned down. The said suit in which the third party requested to be joined as a party was a suit for specific performance of contract. Thus, the facts of our case are totally different. In the instant case, the suit is not for specific performance of a contract, but the suit is for cancellation of sale-deed. Needless to say that even the petitioner can be said to be interested not only in the cause of action of the suit, but even the ultimate relief prayed by the original plaintiff regarding cancellation of earlier sale-deed.
11.1. Reliance was also placed on the decision rendered in the case of Ajmera Housing Corporation v. Amrit M. Patel reported in : AIR 1998 SC 2542 and in the case of Anil Kumar Singh v. Shivnath Mishra reported in : 1995 (3) SCC 147. However, considering the facts of both the cases, it transpires that the suits in which the third parties claimed to be joined as one of the parties were suits for specific performance of contract of sale of immovable property. In the instant case, needless to say that the nature of litigation is different and the petitioner carries interest not only in the subject-matter of the suit but even in the reliefs prayed for by the original plaintiff in the suit. Even otherwise, the facts of the cases are different.
11.2. Reliance was placed on the decision rendered in the case of Bibi Zubaida Khatoon v. Nabi Hassan Saheb reported in : 2004 (1) SCC 191. Considering the facts of said case, it transpires that the trial Court by an order dated 11-10-1996 rejected the prayer for joinder of the petitioner in the two suits observing that the property having been purchased during pendency of the suit, the decree passed in the suit shall bind the transferee pendente lite. It was also observed that the suit being old one of the year 1983, its earliest disposal was necessary. However, in Para 9 of said judgment, Hon'ble the Apex Court observed that, 'It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as party to enable him to protect his interest. But in the instant case, the trial Court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to delay the suit'. Thus, the facts and circumstances of the case relied upon are different and distinguishable than our case.
11.3. Reliance was placed on the decision rendered in the case of Pannala Renuka W/o. P. Parvathal Reddy v. Kavali (Rajumouni) Venkataiah reported in : AIR 2007 AP 46. In the said case, it was observed that an alienee pendente lite i.e., a person who purchased suit property during pendency of a suit in gross violation of Section 52 of the T.P. Act has no enforceable legal right. The purchaser lis pendens is bound by the decree passed against his vendor and he cannot as of right be impleaded in the suit.
11.4. As stated above, the identical issue in the decision rendered in case of Amit Kumar Shaw's case (supra) was decided by Hon'ble the Apex Court and in Paras 15 and 16 of said judgment, considering Order 22, Rule 10 of the C.P.C. together with Section 52 of the T.P. Act, Hon'ble the Apex Court by allowing said appeal observed that the presence of the appellants was absolutely necessary since the appellants were the only persons who have got subsisting right, title and interest in the suit. Therefore, they were permitted to be impleaded in a pending suit. Moreover, the facts of Pannala Renuka's case (supra) decided by Andhra Pradesh High Court are totally different than the instant case on hand. It may be noted that in the instant case on hand, the alleged first transfer made by original defendant No. 1 in favour of original defendant No. 2 itself is the subject-matter of suit and the first sale-deed itself is under challenge and it is the specific relief played for in the suit for cancellation of said sale-deed dated 29-1-2005. No such facts were there in the case before the Andhra Pradesh High Court.
11.5. Reliance was placed on the judgment rendered in the case of Noormohmad v. Anand Mohan reported in 1981 GLR 332. Considering the provisions contained under Order 1, Rule 10(2) of the C.P.C., this Court observed that addition of party as co-defendant is discretion of Court. In a dispute regarding a particular property as to whether it is evacuee property between plaintiff and the Government, the allottee was not held to be a necessary party. There cannot be any dispute regarding the principles established in the aforesaid ruling. However, the facts of our case, as elaborately discussed above, are totally different. In the present case, needless to say that the petitioner is interested not only in the lis but even in the subject-matter of the property.
11.6. Reliance was placed on the judgment rendered in the case of Malaji Budhaji Thakor v. Lalaji Jagaji Thakor reported in 1998 (0) GLHEL 214131 corresponding reporting in 1999 (2) GCD 1645. Considering the facts of said case, the pending suit was for specific performance of a contract. Considering the peculiar facts and circumstances of said case, it was observed that the third party was not interested in the cause of action or the ultimate relief prayed for in the said suit. Along with such observation, it was further observed that suit was filed by the original plaintiff after paying the Court-fees and the third party wants to get a decision for his rights. Thus, considering the peculiar facts and circumstances of said case and the specific observation that the third party has come on different cause of action and he had no nexus with the cause of action pleaded by the original plaintiff in the suit, the third party was not considered to be proper or necessary party.
12. Therefore, considering the facts and circumstances of the instant case, I am of the opinion that the trial Court should have allowed the application of the petitioner. The original plaintiff has filed a withdrawal pursis in the suit. On behalf of the respondents, it was submitted that the plaintiff has a right to withdraw his suit and unwilling litigant cannot be compelled to proceed further with the litigation. There cannot be any dispute regarding the same. However, it may be noted that there is a difference between withdrawal of suit and withdrawal from suit. In the instant case, if the original plaintiff desires to get himself withdrawn from the suit, the petitioner, who is equally interested in the cause of action as well as in the ultimate relief prayed for by the original plaintiff in the suit, can proceed further with the litigation. As a matter of fact, considering the nature of the suit and the relief prayed for by the original plaintiff and the facts and circumstances of the case, it cannot be said that the interest of the original plaintiff and the petitioner are conflicting in nature. On behalf of the respondents, it is submitted that the heirs of Mafaji, the respondent No. 1 has ratified the sale-deed dated 29-1-2005 executed by respondent No. 2 in favour of respondent No. 3. That the ratification was done on 6-7-2007. It is also submitted that the claim of the petitioner has become time-barred and question of limitation shall arise. Now, in this respect, whether the ratification amounts to fresh sale or not is a question to be decided only after full-fledged evidence. Even the factum of ratification itself cannot be conclusively decided in this petition. Furthermore, considering the facts and the circumstances of the suit, even the dispute of limitation raised by the respondents cannot be said to be pure question of law, but is a mixed question of law and facts, so far as it relates to the petitioner. As stated earlier in this judgment, it may not be just and proper to conclusively decide in this petition, the merits of the case or of defence of the parties.
12.1. So far as the respondent No. 1 (original plaintiff) is concerned, he is not interested in the suit now, as he has clearly expressed his intention about it in the withdrawal pursis filed in the suit. The only controversy now is between the petitioner and the respondent No. 3 (original defendant No. 2) as to out of the two, who is lawful owner of the suit property. In Amit Kumar Shaw's case (supra), almost identical situation had arisen. In said case, though the appellants had filed the petitions praying for adding them as a party in connection with two appeals, Hon'ble the Apex Court after elaborately discussing the facts of the said case and provisions contained under Order 1, Rule 10, under Order 22, Rule 10 of the C.P.C. and Section 52 of the T.P. Act, in Para 17 of said judgment, observed that 'The High Court proceeded on a wrong premise that the appellants had made the application for addition of party, whereas the application under consideration was for substitution, as the owner had sold the suit property to the appellants and had no interest in the pending litigation. Therefore, virtually in the instant case, the real contesting parties would be the petitioner and the respondent Nos. 2 and 3, so far as the suit is concerned. However, at present, the petitioner is permitted to be impleaded in the suit as plaintiff No. 2 as the Civil Court has not passed any formal order below the withdrawal Pursis, and thereafter, he can proceed further with the suit in accordance with law.
13. Lastly, on behalf of the respondents, it is submitted that if the petitioner would be joined as plaintiff No. 2 in the suit, the question of Court-fees would arise and that after his impleadment as plaintiff No. 2, he may ask for material amendments in the plaint of the suit. Now once it is held that the petitioner is entitled to be impleaded as plaintiff No. 2 in the suit, such technical or procedural problems like Court-fees or apprehended amendments in plaint, etc., shall not come in his way and all such technicalities shall pale into insignificance. Civil Courts have ample powers within the four corners of law to meet with such problems. If need be and if so required, Court-fees can be recovered from the plaintiff No. 2 after his impleadment in the suit. Furthermore, considering the facts and circumstances of the case and the case of the petitioner and considering the foregoing discussion, the petitioner is equally interested in the cause of action of the suit pleaded in the plaint and the final relief prayed for in the suit, and therefore, no material amendments would be required as apprehended by the respondents. However, if the requirements laid down under Order 6, Rule 17 of the C.P.C. are satisfied by any party seeking amendment in pleadings, Civil Court shall exercise its powers in favour of such amendments.
13.1. Therefore, in sum and substance, if a claim of a third party of joining him as a party to a civil suit is supported by the provisions contained under Order 1, Rule 10 and under Order 22, Rule 10 of the C.P.C., yet solely giving weightage to such technicalities, if his request is turned down and rejected, I am of the opinion that it would amount to making these provisions contained in the C.P.C. nugatory and futile.
14. In light of the above discussion, the petition is allowed and the impugned order passed by the trial Court dated 10-9-2007 below Exh. 29 in Special Civil Suit No. 89 of 2006 is quashed and set aside. The petitioner is permitted to be impleaded in Special Civil Suit No. 89 of 2006 at this stage as plaintiff No. 2. Rule is made absolute. No order as to costs.
15. At this stage, learned Advocate Ms. Trusha Patel for the respondent No. 1 requested that the operation of this order be kindly stayed for four weeks. Considering the facts and circumstances of the case, said request is not granted.