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2011 Supreme(Guj) 436
HIGH COURT OF GUJARAT
S.J. MUKHOPADHAYA, J.B. PARDIWALA, JJ.
Vijay Hathising Shah - Appellant
Versus
Gitaben Parshottamdas Mukhi L.R. Of Chanchalben P Mukhi - Respondent
LETTERS PATENT APPEAL No. 289 of 2008 In SPECIAL CIVIL APPLICATION No. 6737 of 2007
Decided on : Jul 28, 2011
Shalin N. Mehta, J.V. Mehta, S.R. Vakil
Headnote:
Constitution of India, 1950 - Article 226 and 227 - Civil Procedure Code, 1908 - Order 6, Rule 17 - Suit was instituted by mother of respondent no.1 herein for partition of suit property, It appears that Civil Judge granted exparte ad interim injunction in terms of Para4( a) of the Application Exh:5 preferred by the plaintiff in Regular Civil Suit Respondent nos.3, 4, 5/1 to 5/4, arrayed as defendant nos.1, 2 and 4/1 to 4/4 respectively in the suit, sold one land bearing Survey Cit. Respondent no.1 herein came to know about the sale of the said land bearing Survey to the present appellants- Held, it was evident that no writ had been issued by single judge - Single judge after considering the order passed by Civil Judge had merely revised the same and quashed the order - Proceedings before Single Judge were apparently and also in substance superintending and not original in character, No element or ingredient either on facts or law which affords any justification to invoke article 226 of Constitution of India, Letters Patent Appeal would not be maintainable - Appeal dismissed.
J.B. PARDIWALA, J.
1. IN this appeal, the appellants (newly impleaded defendants in the array of parties in Regular Civil Suit No.6170 of 1990 pending in the Court of City Civil and Sessions Court, Ahmedabad) seek to challenge the judgment and order dated 08.01.2008 passed by the learned Single Judge in Special Civil Application No.6737 of 2007 whereby learned Single Judge allowed the petition preferred by respondent no.1 herein by allowing application Exh:420 preferred in Regular Civil Suit No.6170 of 1990 in the Court of City Civil and Sessions Court, Ahmedabad and permitting respondent no.1-original plaintiff to amend the plaint.
2. FACTS relevant for the purpose of deciding this appeal can be summarized as under:-
2.1 Regular Civil Suit No.6170 of 1990 was instituted by Chanchalben Parshottamdas Patel, mother of respondent no.1 herein for partition of suit property of one Parshottamdas Khodidas Patel.
2.2 It appears that the Civil Judge granted ex-parte ad-interim injunction in terms of Para-4(a) of the Application Exh:5 preferred by the plaintiff (respondent no.1) in Regular Civil Suit No.6170 of 1990. Respondent nos.3, 4, 5/1 to 5/4, arrayed as defendant nos.1, 2 and 4/1 to 4/4 respectively in the suit, sold one land bearing Survey No.1038 of Village Vejalpur, Taluka: City, District: Ahmedabad. Respondent no.1 herein came to know about the sale of the said land bearing Survey No.1038 to the present appellants.
2.3 It appears that an application for contempt was moved by respondent no.1-original plaintiff in Regular Civil Suit No.6170 of 1990 with a prayer to hold respondent nos.3, 4, and 5/1 to 5/4 guilty of disobedience of the Court's order. Respondent nos.3, 4 and 5/1 to 5/4 in response to the application for contempt preferred by respondent no.1 herein admitted about sale deed dated 06.04.1998 in favour of the present appellants.
2.4 It appears that respondent no.1 herein preferred application Exh:247 in Regular Civil Suit No.6170 of 1990 for summoning the appellants herein as witnesses. Record also reveals that the registered sale deed dated 06.04.1998 executed by respondent nos.3, 4 and 5/1 to 5/4 in favour of the present appellants was brought on the record of the suit by respondent no.1-original plaintiff vide list of documents Exh:266.
2.5 It appears that the appellants instituted Regular Civil Suit No.696 of 2004 before the Senior Civil Judge, Ahmedabad (Rural) against respondent no.1 praying for a declaration and a permanent injunction in respect of land bearing Survey No.1038.
2.6 On 1st February, 2007, Application Exh:420 came to be filed by respondent no.1 for amendment of the plaint after having learnt about the registered sale deed dated 06.04.1998 with a view to implead the present appellants in the suit and to seek cancellation of the sale deed dated 06.04.1998.
2.7 Record reveals that vide order below Exh:420, Civil Judge rejected the amendment application preferred by respondent no.1-original plaintiff under Order-VI, Rule-17 of the Code of Civil Procedure, 1908. The said order came to be challenged by respondent no.1 by filing Special Civil Application No.6737 of 2007. Learned Single Judge allowed the petition and thereby allowed Application Exh:420 preferred by respondent no.1 for amendment of plaint and permitting respondent no.1 to carry out the necessary amendment.
It deserves to be noted that the appellants herein were not parties in the said petition preferred by respondent no.1 aggrieved by the said order passed below Exh:240. Therefore, an application for leave to appeal was preferred by the appellants herein which came to be allowed and that is how the appellants herein now seek to challenge the order passed by the learned Single Judge dated 08.01.2008 allowing respondent no.1-original plaintiff to amend the plaint as per prayer made in Exh:420 preferred in Regular Civil Suit No.6170 of 1990.
3. HAVING gone through the judgment and order passed by the learned Single Judge dated 08.01.2008 w
