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1995 DIGILAW 238 (GUJ)

Babubhai Laxmanbhai v. Patel Naranbhai Thakersibhai

1995-04-24

J.N.BHATT

body1995
J. N. BHATT, J. ( 1 ) THE petitioners herein have questioned the order passed by the learned 4th Joint Civil Judge (S. D.) at Bhavnagar below Applications Exs. 108 and 112 alongwith other applications in Special civil Suit No. 64 of 1983, by invoking aids of provisions of Section 115 of the Code of Civil Procedure, 1908 (code for short ). ( 2 ) WITH a view to appreciate the merits of the revision application, a few material facts may be stated at this stage. Land bearing Survey No. 141 of village Nesvad of Mahuva taluka of Bhavnagar district which originally belonged to the owner one Mr. Babuthai Chhaganbhai came to be converted into non-agricultural purpose by virtue of permission obtained on 6-3-1975 through respondent No. 1. Thereafter, the land came to be divided in various plots and agreements of sale in respect of the plots were entered into. These plots were sold to various purchasers and accordingly, their names also were mutated in the revenue record. The petitioners have inter alia contended that they are in possession and enjoyment of the plots purchased by them out of S. No. 141. ( 3 ) THE petitioners who are the original applicants have also contended that respondents Nos. 8 and 9 in collusion with father of respondent No. 9 filed Special civil Suit No. 7 of 1978 in the court of the learned Civil Judge (S. D.) at Bhavnagar on or about 4-1-1978 against them and also against Shriji Co-operative Housing society (the society for short ). That suit was filed by the heirs of original owner for a declaration that the disputed land S. No. 141 is their ancestral property and respondent No. 8, mother of original owner, respondent No. 9 Oghad, uncle of respondents Nos. 2 to 7 who are heirs of owner Babubhai Chhaganbhai. In Special civil Suit No. 7 of 1978, the plaintiffs who are respondents Nos. 2 to 7 got a decree in their favour whereby the argeements in respect of the plots were held to be not binding as the property bearing S. No. 141 is ancestral property. The decree came to be passed in favour of the plaintiffs of that suit on 7-4-1982. Therefore, some of the purchasers challenged the legality and validity of the decree obtained in Special civil Suit No. 7 of 1978 by respondents nos. The decree came to be passed in favour of the plaintiffs of that suit on 7-4-1982. Therefore, some of the purchasers challenged the legality and validity of the decree obtained in Special civil Suit No. 7 of 1978 by respondents nos. 2 to 7 against respondents Nos. 8 and 9 and the so-called society. During the course of pendency of the suit, the petitioners, submitted two applications, exs. 108 and 112 in Special Civil Suit No. 64 of 1983 on 1-10-1992 and 19-10-1992 under Order 1, Rule 10 of the Code. The petitioners inter alia contended that they are purchasers of same plots of S. No. 141 and they are interested persons. They also contended that original plaintiffs of Suit no. 64 of 1983 applied for withdrawal of the suit and respondent No. 1 herein also applied for transposition of his name as plaintiff in that suit, before the Trial Court. Respondent No. 1 is the original defendant no. 5. After hearing the parties and examining the facts and circumstances, the trial Court by a common order rejected applications Exs. 103, 108 and 112 submitted by the petitioners. Request of original defendant No. 5 for transposing him as plaintiff, at Exh. 120 came to be allowed. Thus, by virtue of the impugned common order, three applications Exhs. 103, 108 and 112 came to be rejected on 19-1-1994 by the Trial Court whereas the application for transposition of original defendant No. 5 Exh. 120 in that suit came to be allowed. Being aggrieved by the impugned order, the original applicants have now filed this revision challenging the legality and validity of the order by invoking aids of provisions of Section 115 of the Code. ( 4 ) FIRSTLY, it is contended that the impugned order rejecting applications Exs. 108 and 112 is totally erroneous and illegal. It is also contended that the Trial court should not have considered the provisions of Order 1, Rule 10 (5) of the code. It is also the contention of the petitioners that in order to avoid multiplicity of proceedings, the applications should have been allowed. In the alternative, it is submitted that since the applications for being impleaded as parties came to be disposed of on a wrong premise, the same should be remitted back to the Trial Court for decision on merits in accordance with law. In the alternative, it is submitted that since the applications for being impleaded as parties came to be disposed of on a wrong premise, the same should be remitted back to the Trial Court for decision on merits in accordance with law. ( 5 ) AFTER having examined the facts and circumstances and considering the limited jurisdictional scope of Section 115 of the code, this court has no hesitation in finding that the present revision is meritless and is required to be dismissed. ( 6 ) THE scope and ambit of a revision under Section 115 is. very much circumscribed. A revision cannot be treated like an appeal. The findings of facts recorded by the Trial Court cannot be challenged in a revision. Apart from that, it is a settled proposition of law that the revisional court shall not interfere with the order of the Trial Court unless it is successfully shown that the subordinate court (A) has exercised a jurisdiction not vested in it by law, or (B) has failed to exercise a jurisdiction so vested in it, or (C) has acted in exercise of its jurisdiction illegally or with material irregularity. In the light of the facts emerging from the record of the present case, this case does not fall in any one of the aforesaid criteria or categories. Simply because the trial Court has taken one view in the matter on facts and that this Court is in a position to take a different view on facts, is no ground for interference under Section 115 of the Code. ( 7 ) MOREOVER, it would not be right to say that the Trial Court has disposed of the applications under Order 1, Rule 10 on one premise and it is wrong and, therefore, for other grounds, the matter should be remitted back for considering the facts and circumstances and the merits thereof. The court is obliged to consider the provisions of Order 1, Rule 10 of the Code which read as under:"10. The court is obliged to consider the provisions of Order 1, Rule 10 of the Code which read as under:"10. (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 through 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. COURT may strike out or add parties - (2) 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. Where defendant added, plaint to be amended - (4) Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on thenew 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 ) IT could very well be seen from the aforesaid provisions that addition of parties can be allowed provided the facts and circumstances so demand and command in light of the provisions of order 1, Rule 10 of the Code. " ( 8 ) IT could very well be seen from the aforesaid provisions that addition of parties can be allowed provided the facts and circumstances so demand and command in light of the provisions of order 1, Rule 10 of the Code. The petitioners applied before the Trial Court for being impleaded as co-plaintiffs in special Civil Suit No. 64 of 1985 As a general rule, the plaintiffs cannot be added without consent of the existing plaintiffs more so in the case of substitution. There is no exceptional case to grant the application and permit the applicants to be impleaded as co-plaintiffs in Special Civil suit No. 64 of 1983. Therefore, it is contended that the prayer in these applications losely made for being impleaded as co-plaintiffs should also be considered as impleading them as co- defendants. First of all, technically, such a contention may not be acceptable. Secondly, the general rule is that, the plaintiff is the master of the situation and it is he who has to decide and choose with whom he has to fight with and what reliefs he has to ask for from whom. The principle of dominus litis ordinarily is required to be followed. Unless and until an exceptional case is made out falling within the ambit of Order 1, Rule 10, request for addition of parties by a stranger and outsider in a suit should not be allowed just like seeking permission to travel in a running train without fare. Obviously, the court has to address itself in such a situation to the following questions: (1) Whether the applicants could file a separate suit for challenge against the impugned judgment and decree? (2) Can the case be not disposed of without the presence of the applicants? in other words, the court has to consider, is it necessary for determination of the real matter in dispute to do so, as requested by the applicants under Order 1, rule 10? In light of the peculiar facts and circumstances, the spontaneous answer to the aforesaid questions would be in the negative. The subsequent suit, i. e. Special civil Suit No. 64 of 1983 is filed against the legality and validity of the decree passed in Special Civil Suit No. 7 of 1978 in which the petitioners-applicants were never parties. In light of the peculiar facts and circumstances, the spontaneous answer to the aforesaid questions would be in the negative. The subsequent suit, i. e. Special civil Suit No. 64 of 1983 is filed against the legality and validity of the decree passed in Special Civil Suit No. 7 of 1978 in which the petitioners-applicants were never parties. The decree passed therein came to be questioned by filing subsequent Special Civil Suit No. 64 of 1983 by the plaintiffs who are purchasers of some of the plots of S. No. 141. The petitioners as third parties came forward with applications Exhs. 108 and 112 taking recourse to the provisions of Order 1, Rule 10 on 1-10-1992 and 19-10-1992 respectively. They have not been able to satisfy as to how they are necessary parties in Special Civil Suit No. 64 of 1983. Apart from that, it cannot be said that Special civil Suit No. 64 of 1983 instituted by some of the purchasers cannot be determined effectively without their presence, or in other words, the petitioners are not in a position to show that it is necessary, for determination of the real matter in dispute, so to do. Therefore, their case does not fall under Order 1, Rule 10 (1) and (2 ). The Trial Court straightway considered Order 1, Rule 10 (5) when the petitioners are not entitled to be impleaded or added as parties as desired in the said suit even under Order 1, Rule 10 (1) and (2 ). Merely because the Trial Court has rejected those applications in terms oi order 1, Rule 10 (5) without first addressing to the provisions of Order 1, rule 10 (1) and (2), it cannot be said that the matter should be remitted back to the trial Court for a fresh decision. Therefore, this Court has not even the slightest hesitation in finding that upon a conjoint reading of the provisions of Order 1, Rule 10 (1) and (2) and provisions of Section 115, the petitioners who are the original applicants have no case for being impleaded as parties either as co-plaintiffs as they claim or in the alternative, as co- defendants. If they have any grievance and want to pursue further legal remedy, it is for them to resort to such legal remedy available to them under law. If they have any grievance and want to pursue further legal remedy, it is for them to resort to such legal remedy available to them under law. Again, nothing is succesfully spelt out from the record which would show that Special civil Suit No. 64 of 1983 cannot be adjudicated upon effectively in absence of the applicants. In the circumstances, this revision application is required to be dismissed. ( 9 ) HAVING regard to the facts and circumstances as narrated hereinabove, this court has no hesitation in holding that there is no special case where departure should be made from the normal principle of dominus litis and the application for being impleaed as parties under Order 1, rule 10 submitted at Exhs. 108 and 112 do not fall within the four corners of the aforesaid provisions. Therefore also, the revision is required to be dismissed being totally meritless. ( 10 ) IN the result, this revision application is dismissed with costs quantified at rs. 1,000/ -. Rule is discharged. Revision dismissed. .