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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
Kunal Vinaykumar Rayllon – Petitioner
Versus
Dhansukh Harjibhai Patel – Respondent
Special Civil Application No. 15899 of 2019
Decided On : 27-04-2021
Constitution of India, 1950 - Article 227 - Civil Procedure Code, 1908 - O.22 R.10 r/w. O.1 R.10 - Suit in name of wrong plaintiff - Whether it has been instituted in name of right plaintiff, Court may at any stage of the suit, if satisfied that suit has been instituted through a bona fide mistake, and that it is necessary for the determination of real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as Court thinks just - Petitioners were ordered to be joined as a party defendants in the counter claim only and not in the suit, however, the learned trial Judge has failed to appreciate said fact that accordingly, has materially erred in passing such an order. It is submitted that when original plaintiff has expressed no objection as to impleadment of the present petitioners as plaintiffs in the suit.
Finding of the court: Petitioners are indisputably the lis pendens transferee and are already on record of counter suit in main suit, subject matter of both is same viz. suit property for which, different sale deeds have been executed and registered. Further petitioners can very well take all contentions as defendants in counter-claim application - When petitioners are already joined as party defendants in the counterclaim in suit and when, it is not case of petitioners that their right to defend is curtailed in any way, and when, it is case of respondent Nos. 1 and 2 that original plaintiff and petitioners are relatives and between whom, sale transaction pendente lite has taken place, in considered opinion of this Court, learned trial Judge has committed no error which requires interference at hands of this Court - Petitioners are the party defendants in counter-claim which is in the main suit only and thus, it is not case that they are not party to suit. Further, when learned advocate for the respondent Nos. 1 and 2 has specifically averred that it may be inadvertently mentioned as counter suit instead of suit, this Court does not find any reason to interfere in the impugned order - Power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by High Court for vindication of its position as the highest judicial authority in the State.
Result: Petition dismissed
JUDGMENT :
ASHOKKUMAR C. JOSHI, J.
1. This petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 09.08.2019 passed below Exhs. 68 and 70 in Special Civil Suit No. 140 of 2015 by the learned 4th Additional Senior Civil Judge, and Additional Chief Judicial Magistrate, Bhuj-Kachchh.
2. Facts in brief of the case on hand are that the land bearing revenue survey No. 30 and 173P13 of Village: Mirzapur, Taluka: Bhuj, District: Kachchh is the land in dispute. The said land originally belonged to the respondent No. 1 herein viz. Dhansukhbhai Harjibhai Patel. On 02.05.2000, Dhansukhlal executed a power of attorney in favour of his brother-in-law namely Dhirajlal. Since Dhansukhbhai Harjibhai Patel was living in Oman, his properties were being managed by his brother-in-law Dhirajlal. On 13.6.2000, on the basis of power of attorney, Dhirajlal sold out one of the lands by a registered sale deed. On 14.12.2000, Dhirajlal applied for release of certain lands from the Notification issued by the Forest Department. On 25.07.2001, Dhirajlal Ladhabhai Patel, acting as power of attorney holder of Dhansukhbhai, applied for conversion of land bearing Survey No. 30 paiki A2-30G into old tenure land. On 17.05.2003, Dhansukhbhai executed a power of attorney in favour of the father of the respondent No. 3-Vasudevbhai. After execution of power of attorney in favour of Vasudevbhai (on 17.05.2003), further communications and proceedings had been carried out by Vasudevbhai only and Dhirajlal had stopped taking any steps. On 22.12.2003, an application was submitted that on 17.05.2003, applicant Dhansukhbhai had executed power of attorney in favour of Vasudevbhai and hence, premium would be paid by him and that further communication be made with him. On 01.02.2004, third party published a notice for purchase of land bearing Survey No. 30. On 03.02.2004, Vasudevbhai had, acting as a power of attorney holder of Dhansukhbhai, published objections against the same. On 23.7.2004, Vasudevbhai paid Rs. 36,60,160/- for conversion of new tenure land bearing Survey No. 30 paiki A2-30G into old tenure land. On 08.09.2004, the Collector passed an order allowing the application. On 10.11.2005, Vasudevbhai issued a cheque for Rs. 30,27,088/- in Government treasury for conversion of land bearing Survey No. 173 paiki A2-30G into old tenure. On 12.11.2005, the said cheque was realized from the bank account of Vasudevbhai. On 30.11.2005, the Collector passed the order converting Survey No. 173 paiki A2-30G into old tenure, wherein, also name of Vasudevbhai was mentioned as a power of attorney holder of Dhansukhbhai. On 07.12.2005, Vasudevbhai applied for Development Permission and paid Rs. 33,827/- to BHADA. On 10.08.2006, Vasudevbhai appeared in the Special Civil Suit No. 205 of 2005 as a power of attorney holder of the applicant and is defending the suit on his behalf. Since land bearing survey No. 173 was included in ‘Forest Zone’ Vasudevbhai had, on 30.12.2004, applied for its exclusion from the ‘Forest Zone’ and inclusion in General Commercial Zone. On 09.05.2007, UD & UH Department, State of Gujarat replied to Vasudevbhai to apply to BHADA. On 29.02.2008, one more application was given by Vasudevbhai to BHADA. Thus, all throughout, Vasudevbhai i.e. father of respondent No. 3 herein was acting as a power of attorney holder of respondent No. 1 i.e. Dhansukhbhai.
2.1 On 05.06.2009, Vasudevbhai, acting as a power of attorney holder of Dhansukhbhai, executed a sale deed in favour of Nishant Thakkar, i.e. respondent No. 3 herein. However, the Subregistrar had referred the said sale deed under section 32A of the Stamp Act for proper valuation. On 19.03.2010, the Deputy Collector, Stamp Duty Valuation considered the sale deed as one of N.A. land and hence, ordered to pay the stamp duty treating the land as NA land. On 16.11.2010, the order passed by the Deputy Collector, was confirmed by the CCRA. Nishantbhai filed Special Civil
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