Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 786 (GUJ)

Hasmukhbhai Chhaganbhai Shah v. Babubhai T Nai

2024-04-05

DEVAN M.DESAI

body2024
JUDGMENT : 1. This Application is filed under Order 23 Rule 1-A read with Order 1 Rule 10 of the Civil Procedure Code, 1908 (for short, hereinafter referred to as ‘the Code’). 2. Heard learned advocates for both the sides and learned Assistant Government Pleader for the respondent – State. 3. The applicant has filed the present First Appeal challenging the judgment and order dated 13.1.2020 passed by the learned District & Sessions Judge, Arvalli at Modasa in Civil Misc. Application No.39 of 2017. The said judgment and order was arising out of the order passed by the learned Charity Commissioner, Ahmedabad in Appeal No.40/2012 and also arising out of order passed by Assistant Charity Commissioner dated 14.5.2012 in Change Report No.105 of 2006. Pending the appeal, the appellant passed away on 9.7.2022. As the original appellant expired, the present applicant has filed the present application for transposing him as an appellant. It is submitted that the original appellant had challenged the Change Report which was accepted by the Assistant Charity Commissioner. The said order was assailed before learned Charity Commissioner. The learned Charity Commissioner rejected the appeal filed by the original appellant and thereafter, the appellant assailed the order of learned Charity Commissioner before the District & Sessions Judge, Arvalli at Modasa. It is submitted that the cause for the challenge still survives even after the death of appellant and the applicant is required to be transposed as appellant as the impugned judgment and order is also affecting the applicant. It is further submitted that the cause of action for filing the present application arose when the original appellant expired. By invoking provisions of order 23 Rule 1-A and provisions of Order 1 Rule 10 of the Code, request is made to permit the present applicant to be transposed as the appellant. 4. Per Contra, learned advocate Mr. Japee has objected and placed reliance upon the affidavit-in-reply dated 8th July, 2023. It is submitted that the present applicant is no more a Trustee of the Trust since the applicant had resigned as a Trustee by tendering a resignation dated 15.4.2006. Along with resignation, the applicant also filed an affidavit, inter-alia, stating that without any coercion, he is tendering the resignation. Along with applicant, four other trustees also resigned from Trust. Pursuant to the said resignation, Change Report was submitted before the Office of Charity Commissioner. Along with resignation, the applicant also filed an affidavit, inter-alia, stating that without any coercion, he is tendering the resignation. Along with applicant, four other trustees also resigned from Trust. Pursuant to the said resignation, Change Report was submitted before the Office of Charity Commissioner. The said Change Report was submitted to the competent authority along the Resolution passed by Trust. By the said Resolution appointment of new trustees alongwith aforesaid five outgoing trustees. Pursuant to the resignation the name of the present applicant and other trustees were deleted from the array of Trustees in the Public Trust Record. 4.1. It is further submitted that the order passed by the learned Charity Commissioner was never challenged by the applicant and the same has attained finality. The order of the learned Charity Commissioner was only challenged by the original appellant – Mr. Hasmukhbhai Chaganbhai Shah who has expired pending present proceedings. It is submitted that the provisions of Order 23 Rule 1-A as well as provisions of Order 1 Rule 10 of the Code are not applicable to the facts of the present case and has submitted that the applicant has no right to be either impleaded or transposed as appellant. It is further submitted that the Appeal has abated upon death of Sole Appellant. 5. Learned advocate for the respondent No.5 has supported the submission of learned advocate for the applicant and has also placed reliance upon the affidavit-in-reply filed on 31st July, 2023. 6. Learned AGP has submitted that the applicant in the present set of facts cannot be transposed as an appellant and the provisions of Order 23 Rule 1-A as well as provisions contained under Order 1 Rule 10 of the Code are not applicable and has prayed for dismissal of application. 7. Having considered the submissions and the application together with affidavit-in-reply filed by the respective parties. The question which is to be answered is that whether in the present set of facts, provisions of Order 23 Rule 1-A as well as provisions contained in Order 1 Rule 10 of the Code are applicable or not? Both the provision are reproduced hereinbelow:- ORDER XXIII RULE 1-A: When transposition of defendants as plaintiff may be permitted. The question which is to be answered is that whether in the present set of facts, provisions of Order 23 Rule 1-A as well as provisions contained in Order 1 Rule 10 of the Code are applicable or not? Both the provision are reproduced hereinbelow:- ORDER XXIII RULE 1-A: When transposition of defendants as plaintiff may be permitted. “1A.When transposition of defendants as plaintiffs may be permitted.—Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.” ORDER I RULE 10 (2): “(2) Court may strike out or add parties.-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 jointed, 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.” 8. Sub-Clause 2 of Rule 10 of order 1 gives a power to a Court to either upon or without the application of either party may, join or strike out any of the parties. The said provision prescribes further that it is for the court to decide whether such party is a necessary party to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit. 9. Such is not the case here. Here the proceedings are already abated and such provision is not applicable to the facts of the case. It is not the case of applicant to add himself in the Appeal. The prayer is to transpose applicant as an appellant. Both the provisions, i.e. order XXII Rule 1A and order 1 Rule 10(2) of the Code operate in different directions. Both the applications cannot be made applicable simultaneously by the same party in the same proceeding. 10. It is not the case of applicant to add himself in the Appeal. The prayer is to transpose applicant as an appellant. Both the provisions, i.e. order XXII Rule 1A and order 1 Rule 10(2) of the Code operate in different directions. Both the applications cannot be made applicable simultaneously by the same party in the same proceeding. 10. Sub-Rule 1A of order XXIII provides for the circumstances under which a defendant is transposed as a plaintiff. The plaintiff must either abundant or withdraw the claim or suit. The Rule applies by virtue of Section 107 to appeals also. Hence, the Court can transpose a respondent as an appellant when the original appellant is to abandon or withdraw the appeal. As it is clear from the plain reading of the Rule, the court is not bound to allow application for transposition under this Rule in a mechanical manner but has to consider whether the applicant has a substantial equation to be decided as against any of the other respondents. The question which arise weather a respondent is transposed as an appellant would be as to where limitation is to be counted as from the date of Institution of the appeal or from the date of transposition. Where it appears a likelihood of appeal being widened, the claim can be reluctant to transpose respondent as applicant. 11. Before the provision of Rule 1A of Order XXIII of the Code are invoked, it must be shown that the Appellant is seeking to withdraw or abundant his claim under Rule 1 of Order XXIII. The principle that follows is that there must be identity of interest between the appellant and such a Respondent who wants to be transposed as an Appellant. It must be a Suit/Appeal where the respondent is entitled to succeed automatically on the success of the appellant in the suit/ appeal. The party seeking transposition must show that he has a plausible and a genuine case to be agitated. The word abundant means to give up with intent of never again resuming one's right or interest. 11.1. Now, if respondent is permitted to be transposed as appellant it would lead to chaotic situation for the simple reason that the present applicant did not challenge the order of learned Charity Commissioner. The word abundant means to give up with intent of never again resuming one's right or interest. 11.1. Now, if respondent is permitted to be transposed as appellant it would lead to chaotic situation for the simple reason that the present applicant did not challenge the order of learned Charity Commissioner. By the order of Assistant Charity Commissioner, Change Report was accepted wherein the resignation of present applicant and other four Trustees were accepted and their names from Public Trust Record as Trustees were removed. The applicant has chosen not to challenge the order of learned Charity Commissioner and accepted the decision of the learned Charity Commissioner. As a fence-sitter, applicant watched the proceedings to proceed and when the appellant expired on 9.7.2022 after about one year, the present application is preferred, seeking transposition. 12. In the present case it is not the case that the Appellant wants to abundant or withdraw the appeal. The fact which has surfaced on the record is that the appellant has expired and the appeal has already been abated. Hence, in abated proceedings provisions of either order XXIII Rule 1A and / or Order 1 Rule 10 (2) of the Code cannot be made applicable. 13. The decision relied upon by the learned advocate for the applicant is not applicable to the facts of the present case. In the said decision the plaintiff sought permission to withdraw the suit and a few of the defendants objected for withdrawal of the suit and also filed an application under Order 23 Rule 1-A coupled with Order 1 Rule 10 of the Code. Under those facts and circumstances, the application for transposition was granted whereas in the present case, upon the death of original appellant, the appeal has already been abated. Therefore, present application is not maintainable and deserves to be rejected. 14. The applicant very-well knew that he has accepted the verdict of the learned Charity Commissioner. In my view, this is nothing but an abuse of process of law and Court.. The present application is nothing but misuse of the process of Court. The applicant has also suppressed in the application that he has resigned as a Trustee on 15.4.2006 and also suppressed the affidavit which was filed along with his resignation. In my view, this is nothing but an abuse of process of law and Court.. The present application is nothing but misuse of the process of Court. The applicant has also suppressed in the application that he has resigned as a Trustee on 15.4.2006 and also suppressed the affidavit which was filed along with his resignation. Such a conduct of the applicant is highly deprecated and the applicant is required to be saddled with heavy cost for making an attempt to pursue a dead litigation. There is no explanation forthcoming from the applicant side as to why the application was filed after a period of one year. All such conduct of applicant dis-entitles applicant from seeking reliefs prayed for in the application. 15. Thus, in the totality of facts, the application is devoid of merit and the same is rejected with the cost of Rs.20,000/- to be deposited before Gujarat High Court Legal Services Committee, Ahmedabad within a period of 15 (fifteen) days from the date of receipt of this order. 16. Appeal is dismissed as abated.