IMPORTANT POINTS
(1) Mere non-mentioning of incorrect provision is not fatal to application if power to pass such an order is available with court.
(2) Respondent, being purchaser for bona fide consideration, has a vital interest in suit and has right to continue suit.

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.

2. One Mafaji Motiji Thakor (for short ‘MMT’), who is the father and predecessor-in-interest 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), predecessor-in-interest of the appellants herein. MMT filed a civil suit (No.89 of 2006) against the predecessor-in-interest 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 predecessor-in-interest of the appellants.

3. On 23.03.2007, respondent no. 1, Jayeshkumar Chhakaddas Shah (for short ‘JCS’), purchased the land from 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 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 substit