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2021 DIGILAW 234 (GUJ)

Shakuntalaben v. Chunilal Dhulabhai Patel

2021-03-18

ASHOKKUMAR C.JOSHI

body2021
JUDGMENT Dr. Ashokkumar C. Joshi, J. 1. By way of this petition the petitioner-original defendant prays for the following reliefs: "(A) A writ of certiorari or any other appropriate writ, order or direction may kingly be issued quashing and setting aside the order dated 02.01.2020, passed by the Court of the Ld. Addl. Civil Judge, Jambusar, below Exh. 160 in Regular Civil Suit No. 77 of 2001 at Annexure-'A' in the interest of justice. (B) Pending hearing and final disposal of the present Special Civil Application, kingly stay the implementation of the impugned order dated 02.01.2020 passed by the Court of the Ld. Addl. Civil Judge, Jambusar, below Exh. 160 in Regular Civil Suit No. 77 of 2001 at Annexure-'A' in the interest of justice. (C) Any other and/or further orders that may be deemed necessary in the interest of justice may kindly be passed." 2. The factual matrix of the case is that the respondent nos. 4 and 5 herein filed an application under Order 22 Rule 3 below Exh. 160 in Regular Civil Suit No. 77/2001, praying for to join them as legal representatives of deceased plaintiff no. 2 namely Jayantibhai Motibhai Patel. The said application was opposed by the petitioner herein on the ground that the applicants are not the legal representatives of the deceased original plaintiff no. 2. However, the application came to be allowed by way of the impugned order dated 02.01.2020. Hence, this petition. 3. Rule. Learned advocate Mr. Pushpadatta Vyas waives service of rule on behalf of respondent nos. 4 and 5, who are the main contesting parties. 4. Heard learned advocate Mr. Amit N Patel for the petitioner and learned advocate Mr. Pushpadatta Vyas for the respondent nos. 4 and 5. 5. Learned advocate Mr. Amit Patel for the petitioner has submitted that original plaintiff nos. 1 to 3 had filed Regular Civil Suit No. 77 of 2001 against the present petitioner i.e. original defendant before the learned Civil Judge, Jambusar seeking permanent injunction for not selling/transferring/alienating the suit lands in any manner. He further submitted that the present petitioner had filed reply to the said suit. He also submitted that the petitioner has also filed a Regular Civil Suit No. 75/2001 against the respondent nos. 1 to 3 before the Learned Civil Judge, Jambusar for permanent injunction for not selling or transferring the suit lands, which is also pending. 6. He further submitted that the present petitioner had filed reply to the said suit. He also submitted that the petitioner has also filed a Regular Civil Suit No. 75/2001 against the respondent nos. 1 to 3 before the Learned Civil Judge, Jambusar for permanent injunction for not selling or transferring the suit lands, which is also pending. 6. Learned advocate Mr. Patel for the petitioner has further submitted that the present respondent nos. 4 and 5 had filed application vide Exh. 160 under Order 22 Rule 3 of CPC along with an application Exh. 154 for delay condonation. In the said application, it was contended that the present respondent nos. 4 and 5 were Hindu and were performing religious rituals regularly in Lalji Maharaj Mandir and hence, they are Hindu beneficiaries and are having same rights in the suit land as the deceased plaintiff no. 2 had. In the said application, the present respondent nos. 4 and 5 contended that they should be joined as legal representatives of deceased plaintiff no. 2 in the suit in question as plaintiff nos. 2/1 and 2/2. The present petitioner had filed reply against the said application wherein all the contentions of present respondent nos. 4 and 5 were denied and had raised strong objections against joining them as plaintiff nos. 2/1 and 2/2. However, the learned trial Court allowed the said application under Order 22 Rule 3 of CPC of present respondent nos. 4 and 5, permitting them to be joined as party respondent nos. 2/1 and 2/2 to the suit. 7. Learned advocate Mr. Patel further submits that the learned trial Court has not appreciated the documents and materials on record and the fact that the respondent no. 4 and 5 are not the legal representatives of the deceased plaintiff no. 2. He further submitted that there is no cogent evidence to show that respondent nos. 4 and 5 are in anyway related to the deceased plaintiff no. 2. He has further urged that the impugned order passed under Order 22 Rule 3 is not tenable in law. Therefore, he has requested to quash and set aside the impugned order of the trial Court. 8. In support of his submissions, the learned advocate for the petitioner has placed reliance upon a decision in Mahendrasinh Jorhubha Zala and Ors. Vs. Deceased Kantaben Shrikrishna Agrawal and Ors, reported in 2017 AIR(Guj) 204. 9. Therefore, he has requested to quash and set aside the impugned order of the trial Court. 8. In support of his submissions, the learned advocate for the petitioner has placed reliance upon a decision in Mahendrasinh Jorhubha Zala and Ors. Vs. Deceased Kantaben Shrikrishna Agrawal and Ors, reported in 2017 AIR(Guj) 204. 9. Per Contra, learned advocate Mr. Vyas for the respondent nos. 4 and 5 states that the trial Court has correctly appreciated the facts of the case and there is no error in the impugned order. He states that the trial Court, after considering facts and circumstances of the case on hand, has come to the conclusion that the presence of the respondent nos. 4 and 5 is necessary for effective adjudication of the suit and thus, allowed the application which is just and proper. He also submitted that the petitioner has not come with clean hands and also has played foul to avoid the adjudication of the suit by preferring the present petition. He submits that the Court may not allow the present petition as the Regular Civil Suits are already pending before the courts below. 10. Learned advocate Mr. Vyas for the respondent nos. 4 and 5, in support of his contentions, has placed reliance upon following decisions of this Court as well as the Hon'ble Supreme Court, as under: 1. Sadhana Lodh Vs. National Insurance Company Ltd. reported in, 2003(0) GLHEL-SC-24882, wherein it is held that right of appeal is a statutory right and where law provides remedy by filing an appeal on limited grounds and the grounds of challenge cannot be enlarged by filing petition under Article 226-227 of the Constitution. It is also observed that supervisory jurisdiction under Article 227 of Constitution is confined only to see whether the Subordinate Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of record much less of an error of law. 2. Commissioner of Education Gujarat State Vs. Alpana Lallubhai Patel reported in : 2016(0) AIJEL-HC 235901, wherein it is held that the High Court has only supervisory jurisdiction under Article 227 and cannot act as an Appellate Authority and has only to see that an inferior Court has to function within the limits of its authority. 3. Kirtikumar Jadavji Varsani Vs. Commissioner of Education Gujarat State Vs. Alpana Lallubhai Patel reported in : 2016(0) AIJEL-HC 235901, wherein it is held that the High Court has only supervisory jurisdiction under Article 227 and cannot act as an Appellate Authority and has only to see that an inferior Court has to function within the limits of its authority. 3. Kirtikumar Jadavji Varsani Vs. Shree Abjibapanichatedi and Hanumanji Temple Trust reported in : 2016(0) AIJEL-HC- 234935, wherein it is held that when legal heirs of the original litigants cannot be joined, then considering the provisions of entire Order -I, such parties are having same interest on the subject, then they are necessary parties and can be joined in the same litigation as provided under Rule 3 of Order -I. 4. State of Gujarat Vs. Govindbhai Jakhubhai and Anr. reported in : 1999 (1) GLH 833 . 5. Murtujakhan Akbarkhan Pathan Vs. State of Gujarat and anr. reported in : 2000(2) GLH 698 . 6. Dr. Gangaram Panachand Prajapati Vs. State of Gujarat and anr. reported in 2009 (2) GLH 600 . 7. Bharatbhai R Bhavsar Vs. Director of Municipalities and Others reported in 2008 (2) GLH 752 . 11. Having heard the learned advocates for the respective parties and considering the averments made in the petition, so also pursuant to the impugned order dated 02.01.2020, passed below Exh. 160 in Regular Civil Suit No. 77/2001, it transpires that by application Exh. 160, it was prayed by respondent nos. 4 and 5 herein to implead them as legal representatives of deceased original plaintiff no. 2 as they are proper and necessary parties having interest as beneficiaries in the suit property. The said application came to be allowed by the learned trial Judge on the premise that the applicants are the necessary parties and for effective adjudication, their presence is required in the suit. 12. In this regard it would be apt to refer to the provisions of Order 1 Rule 9 of the CPC, which read as under: "No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." 12.1. In the said sets of circumstances, the concept of necessary and proper party is required to be delved in. In the said sets of circumstances, the concept of necessary and proper party is required to be delved in. A necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 13. In the case on hand, it was the case of the applicants-respondent nos. 4 and 5 herein that deceased original plaintiff no. 2- Jayantibhai Motibhai Patel had died on 06.01.2018 and the legal representatives were required to be joined in the pending suit. Further, the original plaintiff no. 1 was an old aged person and not keeping well. That the respondent nos. 4 and 5 herein were holding interest in the suit property as being held by deceased original plaintiff no. 2 and accordingly, they were required to be joined as plaintiff nos. 2/1 and 2/2 in the said suit. Thus, the respondent nos. 4 and 5 herein being the worshipers and having interest in the suit property, they are necessary parties in the suit. 14. At this juncture, it would also be beneficial to refer the provisions of Order 22 Rule 3 of Civil Procedure Code which reads as under: "3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." 15. It is also pertinent to go through the definition of legal representative as defined in section 2(11) of the Civil Procedure Code, which defines that "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." 16. By virtue of Order 22 Rule 3, the court on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff be made a party and shall proceed with the suit. 17. Adverting to the facts of the present case, the applicants-respondent nos. 4 and 5 are stated to be the beneficiaries in the suit property as was the deceased original plaintiff no. 2. In this regard if the observations made in para 3 of the impugned order are seen, the learned trial Judge has relied upon a decision of this Court in Chunilal Jashraj Lodha and others Vs. Munshi Mahmadhusain Shaikh and others reported in 1976(17) GLR 227 wherein it is held that the worshipers of an idol are its beneficiaries, though only in a spiritual sense. It is further observed that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage. Accordingly the learned trial Judge has opined that looking to the contents of the application as well as the facts of the present suit, it seems that the applicants are necessary parties to the present suit property of trust. Another suit is filed by the present defendant Shakuntalaben against the plaintiff i.e. Regular Civil Suit No. 75/2001. The suit properties are same in both the suits. The suit properties are the property of trust which are required to be protected from any irreparable loss. 17.1. Another suit is filed by the present defendant Shakuntalaben against the plaintiff i.e. Regular Civil Suit No. 75/2001. The suit properties are same in both the suits. The suit properties are the property of trust which are required to be protected from any irreparable loss. 17.1. Further relying upon a decision in Fatehsinhrao Pratapsinhrao Gaekwad Vs Savjibhai Haribhai Patel reported in : 1985(1) GLR 14 , of this Court, wherein it is held that a necessary party is one without whom no order can be made effectively and proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings and came to the conclusion that in the given set of facts of the present case and the relief claimed by the plaintiff, the presence of the present applicants is necessary for effectual adjudication of the present suit. 18. Thus, considering the totality of facts and circumstances of the case and the observations made in the impugned order, in the considered opinion of this Court the present petition merits, no consideration. 19. So far as decision relied upon by the learned advocate for the petitioner in Mahendrasinh Jorhubha Zala and Ors. (Supra) is concerned, it transpires that in the said case, upon demise of the sole appellant, her legal heirs had not made any application within the prescribed time limit for the said suit in place on original appellant/petitioner and in such circumstances the question before the Court was that whether the third party applicants can file the application in the abated proceedings for joining legal heirs to the deceased. Therefore, the facts and circumstances of the instant case are different, that the respondent nos. 4 and 5 herein, had made application for joining them as plaintiff nos. 2/1 and 2/2, which came to be allowed by way of the impugned order. Hence, the said decision would be of no avail to the present petition. 20. Further, the learned advocate for the respondent nos. 4 and 5 has relied upon several decisions as referred herein above. 2/1 and 2/2, which came to be allowed by way of the impugned order. Hence, the said decision would be of no avail to the present petition. 20. Further, the learned advocate for the respondent nos. 4 and 5 has relied upon several decisions as referred herein above. In Kirtikumar Jadavji Varsani (Supra), it is held that when legal heirs of the original litigants cannot be joined, then considering the provisions of entire Order I, such parties are having same interest on the subject, then they are necessary parties and can be joined in the same litigation as provided under Rule 3 of Order I. Thus, it is settled law that parties having same interests in the subject are necessary parties and can be opined in the same litigation. 20.1. In Sadhana Lodh (Supra), it is observed that supervisory jurisdiction under Article 227 of the Constitution is confined only to see whether the Subordinate Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of record much less of an error of law. 20.2. In Alpana Lallubhai Patel (Supra), it is observed that the High Court has only supervisory jurisdiction under Article 227 and cannot act as an Appellate Authority and has only to see that an inferior Court has to function within the limits of its authority. 20.3. Thus, in view of the aforesaid settled legal position, under the supervisory jurisdiction under Article 227 of the Constitution of India, the High Court cannot act as an appellate authority and has only to see that an inferior Court has functioned within the limits of its authority. 21. In the aforesaid backdrop, when the learned trial Judge has come to the conclusion that the respondent nos. 4 and 5 are the necessary parties for effective adjudication of the suit in question and when the respondent nos. 4 and 5 are stated to have same interest and beneficiaries of the suit property being Regular Civil Suit No. 75/2001 against the original plaintiffs of the present suit and both the suits are pending and when it is settled law that parties having same interest are the necessary parties and can be joined in the same litigation, in the considered opinion of this Court, no case is made out to interfere in the impugned order. 22. 22. In view of the aforesaid discussion and observations, the present petition fails, being devoid of any merits and is dismissed accordingly. Rule is discharged. No orders as to costs.