Pruthvirajsinh N Jadeja(D) By Lrs. vs Jayeshkumar Chhakaddasm Shah .

PRUTHVIRAJSINH NODHUBHA JADEJA (D) BY LRS. …APPELLANT(S)

VERSUS

JAYESHKUMAR CHHAKADDAS SHAH & ORS. …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

By means of this appeal, the appellants who are defendants

in the suit, have challenged the order of the High Court dated

26.03.2009 whereby the order of the trial court has been set

aside and the respondent no. 1 herein has been permitted to be

added as plaintiff no. 2 in the suit.

Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2019.10.04 15:35:08 IST Reason: 1

2. One Mafaji Motiji Thakor (for short ‘MMT’), who is the father

and predecessor­in­interest of respondent nos. 2(A) to 2(D), was

the owner of the suit land. He had executed a power of attorney

in favour of respondent no. 3, Avnish Raman Lal (for short ‘ARL’).

It is alleged that on 29.01.2005, ARL exercising his power under

the power of attorney, sold the land to Pruthvirajsinh Nodhubha

Jadeja (deceased), predecessor­in­interest of the appellants

herein. MMT filed a civil suit (No.89 of 2006) against the

predecessor­in­interest of the appellants and ARL herein

challenging this sale. One of the grounds raised was that no

power to sell the property had been vested in favour of ARL in

terms of the power of attorney executed by MMT. It appears that

during the pendency of the suit, a Court Commissioner was

appointed, who reported that MMT continued to be in possession

of the land. ARL in his written statement filed in the suit,

admitted that the power of attorney did not give him any power to

sell the land. He further stated that he had never executed the

sale deed in favour of predecessor­in­interest of the appellants.

3. On 23.03.2007, respondent no. 1, Jayeshkumar

Chhakaddas Shah (for short ‘JCS’), purchased the land from

2 MMT on payment of Rs.10,00,000/­. This sale deed was

registered and, according to JCS, possession was handed over to

him by MMT. Further, according to JCS, MMT had given an

undertaking in the sale deed that there is no proceeding pending

with regard to the suit land. MMT died on 02.06.2007. On

02.07.2007, JCS filed an application under Order I Rule 10, Code

of Civil Procedure, 1908 (for short ‘CPC’) for impleading him as

plaintiff no. 2 before the trial court. In this application it was

alleged that the legal heirs of MMT, respondent nos. 2(A) to 2(D),

were trying to occupy the suit land in collusion with the

appellants herein. On 06.07.2007 i.e. after JCS filed the

application for impleadment, the legal heirs of MMT executed a

registered declaration deed in favour of the appellants confirming

the sale deed dated 29.01.2005. On 19.07.2007, the legal heirs

of MMT, who had been by then brought on record in the civil suit

filed a memo/miscellaneous application, referred to as ‘Pursis’ in

the orders of the courts below, to unconditionally withdraw the

Civil Suit No.89 of 2006.

4. The trial court dismissed the application filed by JCS for

impleadment holding that he was not a necessary or proper party

3 and that fresh cause of action arose in his favour and he could

file a separate suit. JCS thereafter filed a petition under Article

227 of the Constitution before the High Court, which was allowed

by the High Court mainly on the ground that even if the legal

heirs of MMT wanted to withdraw from the suit, they could do so

but the rights of JCS, would be vitally affected. Therefore, JCS

was entitled to be impleaded as a party in the suit.

5. Shri D.N. Ray, learned counsel for the appellants, submits

that in a case like this the substitution could have been ordered

only in terms of Order XXII Rule 10 CPC. He further submits

that the plaintiff cannot be stopped from withdrawing the plaint

nor can any party force the plaintiff to add another plaintiff with

him. It is also urged that in case JCS is permitted to be added as

plaintiff no. 2, there will be an inter se clash of interest between

plaintiffs themselves and, therefore, the trial court was right in

holding that the plaintiff should file a separate suit to assert his

rights. On the other hand, Mr. Huzefa Ahmadi, learned senior

counsel appearing for the respondents, submits that though it is

true that it would be Order XXII Rule 10 CPC, which is

applicable, the substitution must be allowed and the plaintiff,

4 who has purchased the land from MMT, has a right to be

substituted in his place. He further submits that there is no

clash between the case of his client and that set up by the

original plaintiff MMT. The dispute between the two sides has

occurred because of the subsequent actions of the legal heirs of

MMT who have colluded with the defendant­appellants.

6. MMT allegedly sold the land to the appellants through his

power of attorney on 29.01.2005. Both MMT and his power of

attorney denied this fact and, in fact, urged that the power of

attorney did not give the right to sell the property. Thereafter,

MMT sold the land to JCS. Shri Ahmadi urges that in terms of

the amendment made to Section 52 of the Transfer of Property

Act, 1882 in the State of Maharashtra, as applicable in the State

of Gujarat, every claim for lis pendens has to be registered. He

urges that MMT had not registered the lis pendens and further,

in the sale deed, undertook that there are no legal proceedings

pending with regard to the suit land. Therefore, JCS is the

purchaser for bona fide consideration.

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7. According to us, the application was wrongly filed under

Order I Rule 10 CPC and it should have been filed Order XXII

Rule 10 CPC which reads thus:

“ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

xxx xxx xxx

10. Procedure in case of assignment before final order in suit.­

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub­rule (1).”

8. It is well settled law that mere non­mentioning of an

incorrect provision is not fatal to the application if the power to

pass such an order is available with the court.

9. MMT had assigned his rights and interest in the land in

favour of JCS. Therefore, JCS as an assignee of the rights of the

original plaintiff, had a right to be impleaded as a plaintiff in

place of MMT.

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10. The next question is what is the effect of the legal heirs of

MMT withdrawing the suit. As noted by us above, JCS filed an

application for being joined as plaintiff no. 2 in the suit on

02.07.2007. Subsequently, a settlement was arrived at between

respondent nos. 2(A) to 2(D) and the appellants on 06.07.2007

and only thereafter on 19.07.2007, the legal heirs of the original

plaintiff filed an application for unconditional withdrawal of the

suit.

11. The trial court was seized of both the applications together.

The trial court should have, in our opinion, not dismissed the

application filed by JCS. We may note that the so called

settlement agreement clearly shows that respondent nos. 2(A) to

2(D) had not received any amount from the appellants. There

was no transfer of interest in favour of the appellants by this

document. All that the respondent nos. 2(A) to 2(D) said was that

they stood by the sale deed executed by their father through the

power of attorney in favour of the appellants. On the other hand,

JCS claimed that MMT had sold the land for Rs.10,00,000/­,

payment of which was made by cheque. It is thus obvious that

JCS had a vital interest in the suit and had a right to continue

7 the suit. We are prima facie of the view that JCS need not even

challenge the so called settlement because that settlement does

not, in any way, create any title, right or interest in the suit

parties. Therefore, we hold that JCS had a vital interest in the

suit. The issue whether MMT had authorised respondent no. 3 to

sell the land and whether respondent no. 3 had actually sold the

land, can only be decided in this suit and not in any fresh suit

filed by JCS. We are, therefore, clearly of the view that JCS is

entitled to continue the suit despite respondent nos. 2(A) to 2(D)

having compromised the matter and withdrawn from the suit.

Their withdrawal can have no impact on the rights of JCS.

12. In view of the above discussion, we dismiss the appeal.

Interim order dated 06.07.2009 stands vacated. Pending

application(s), if any, stand(s) disposed of.

………………………………..J. (Deepak Gupta)

…………………………………J. (Aniruddha Bose) New Delhi October 04, 2019

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