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2006 Supreme(Guj) 157
Gujarat High Court
Judgename :D.A.MEHTA
THAKOREBHAI HARIBHAI PATEL - Appellant
Versus
DAKSHIN GUJARAT AAHIR SEVA-SAMAJ TRUST - Respondent
SPECIAL CIVIL APPLICATION 10538 Of 2004
Decided On : 03/02/2006
Headnote:
Civil Procedure Code - Order 1 Rule 10 (2) - Constitution of India,1950 - Articles 226/227 - Petition though styled as being petitioner challenges order made by trial Court below application in Special Civil Suit case of petitioner in nutshell is that petitioner is brother of defendant and both of them are sons of deceased - That plaintiff and defendant are lawfully married wife and husband respectively - That deceased was a co-owner with one of land bearing Revenue Survey - Petitioner and defendant is residing at Mumbai and hence petitioner executed a power of attorney in favor of his brother defendant is further say of petitioner that power of attorney in favor of defendant was in relation to various other parcels of land except land bearing revenue - However defendant forged said power of attorney by interpolating / manipulating document and on basis of such forged document executed a sale deed in favor of plaintiff without knowledge of petitioner or Trust despite fact that said land had already been agreed to be sold in favor of Trust by deceased – Held, Apex Court decision in case of on behalf of the plaintiff cannot carry case of plaintiff any further in order to support impugned order - To contrary Apex Court stated that a person should ordinarily be joined as a party to enable him to protect his interest during pendency of a litigation - In present case trial Court therefore committed an error in exercise of its powers and jurisdiction in this regard - Exercise of jurisdiction and powers of High Court of constitution is by now well-defined and bears no repetition - There is no doubt and there can be none as regards principles laid down by Apex Court - Suffice it to state that this is a case where trial Court has failed to exercise its jurisdiction and powers in accordance with law more particularly in light of requirement - Petition allowed (Para 19)
( 2 ) THE petitioner herein is proposed defendant in Special Civil Suit No. 26 of 1997. The said suit has been instituted by respondent No. 12 herein (original plaintiff) while respondent Nos. 1 to 11 are original defendant Nos. 1 to 11. Except for the petitioner, the parties shall be referred to as per their respective description in the suit.
( 3 ) THE case of the petitioner in nutshell is that the petitioner is brother of defendant No. 5 and both of them are sons of deceased Haribhai Kalidas Patel. That the plaintiff and defendant No. 5 are lawfully married wife and husband respectively. That deceased haribhai Kalidas Patel was a co-owner with one Bhulabhai Budhabhai Aahir of land bearing Revenue Survey No. 205/2. That vide agreement to sell dated 14th January, 1973 deceased Haribhai and Bhulabhai agreed to sell the lands to one Shree Gopal mandir Sanskar Kendra (subsequently known as Dakshin Gujarat Aahir Seva Samaj trust [hereinafter referred to as the Trust ] ). Shri Haribhai expired in 1978 and, therefore, all the properties belonging to the deceased-Haribhai came to be inherited both by the petitioner and defendant No. 5. That the petitioner is residing at Mumbai and hence, in 1981 the petitioner executed a power of attorney in favour of his brother, defendant No. 5. It is further the say of the petitioner that the power of attorney in favour of defendant No. 5 was in relation to various other parcels of land, except land bearing revenue Survey Nos. 204/1 and 205/2. However, defendant No. 5 forged the said power of attorney by interpolating / manipulating the document, and on basis of such forged document executed a sale deed in favour of the plaintiff without the knowledge of the petitioner or the Trust, despite the fact that the said land had already been agreed to be sold in favour of the Trust by deceased-Haribhai. The sale took place on 19th december, 1993.
( 4 ) THE plaintiff filed Special Civil Suit No. 26 of 1997 primarily against the Trust seeking possession of the land in dispute on the basis of the sale deed executed in favour of the plaintiff by defendant No. 5. It is the say of the petitioner that despite the fact that both the plaintiff and defendant No. 5, who are wife and husband respectively, were aware of the fact that deceased-Haribhai had put the Trust in possession, to usurp the land the suit was instituted without bringing this fact on record.
( 5 ) TO complete the narration of facts it is necessary to record that the Trust filed Special civil Suit No. 35 of 1998 and it is on basis of the said institution of suit by the Trust that the petitioner derived knowledge about the transaction effected by his brother, defendant No. 5 in favour of the plaintiff, wife of defendant No. 5. That the petitioner, therefore, approached his brother and sister-in-law calling upon them to set the things right and ensure that the wishes of deceased-Haribhai were respected viz. transferring the land in favour of the Trust. However, because the plaintiff and defendant No. 5 did not respond, the petitioner moved an application Exh. 226 in the pending suit seeking to be impleaded as a party defendant. The said application came to be rejected by the impugned order made by the trial Court on 15th January, 2004.
( 6 ) THE learned advocate for the petitioner has assailed the impugned order principally on the ground that the petitioner is a vitally affected person, and in case the petitioner is not impleaded in the present proceedings an irreversible situation would arise rendering the suit filed by th
