Point of Law: Addition of the proposed defendant would result into causing serious prejudice to the plaintiff and the substitution or the addition of a new cause of action would only widen the issue which requires to be adjudicated in the suit.

JUDGMENT :

B.N. KARIA, J.

1. Rule returnable forthwith. Learned advocate Ms. Shivani Trivedi waives service of notice of rule for and on behalf of respondent No. 3.

2. By preferring this petition, petitioner has requested to quash and set aside the order dated 16.01.2020 passed by the learned 2nd Additional Senior Civil Judge, Gandhinagar in Special Civil Suit No. 171 of 2006.

3. Short facts of the present case may be referred as under:

The plaintiff filed a civil suit against the defendant Nos. 1 and 2 for cancellation of the sale deed executed by the defendant No. 2 in favour of the defendant No. 1 by forging the power of attorney of the plaintiff as per the contention made in the plaint. As per further contention of the plaintiff in the year 2018, entire evidence was over and even arguments were also heard but anyhow judgment was not delivered and the third party namely Rameshbhai Jesangbhai Chaudhary made an application to join him as a necessary party to the court proceedings. Reply was filed by the present petitioner/plaintiff vide Exh.104 by contesting the said application. The trial court was pleased to pass an order below Exh.101 allowing the third party to be joined under Order 1 Rule 10 of C.P.C. Hence this petition.

4. Heard learned advocate for the petitioner and learned advocate for the respondent.

5. It is submitted by learned advocate appearing for the petitioner that the proposed respondent No. 3 in his application has made the averments that he has purchased the suit property from Pasabhai Virchandbhai Prajapati on 27.02.2008 and therefore, he is the owner of the suit property and was in possession. It was further contended in the application that suit was preferred by the petitioner and respondent No. 2 in collusion as he was bona-fide purchaser of the suit property and therefore, he is necessary and proper party, he requested to permit him to join as defendant No. 3 in the suit. It is submitted that suit was pending since 2006 and there was lis pendens registered by the plaintiff and therefore, the proposed party cannot be said to be a bona-fide purchaser of the suit property. It is further submitted that third party applicant would be a subject to embargo of Section 52 of the Transfer of Property Act. That however suit was pending since 2006, third party did not file any application to join him as a necessary party in the suit proceedings. It is further submitted that when the suit was posted for judgment, the application below Exh.101 was filed by the third party, as proposed defendant to begun the suit initiation. That third party has no concern with the prayer made by the plaintiff against the defendant Nos. 1 and 2. That no relief was claimed against the third party in this suit and his presence was not necessary in deciding the suit controversy. That with mala-fide intention below Exh.101 was filed by the third party i.e. proposed defendant with a view to prolong the trial unnecessarily. That trial court has completely ignored Order 1 Rule 10 of the C.P.C. and beyond the scope and limit impugned order is passed. It is further submitted that presence of the third party was not necessary for effective hearing of the suit transaction. Hence, it was requested by learned advocate for the petitioner to quash and set aside the impugned order passed by the trial court below Exh.101. In support of his arguments, learned advocate for the petitioner has relied upon the judgments reported in 1992 (0) GLHEL-SC 23585, 2016 (0) AIJEL-SC 60241 and 2003 (0) GLHEL-SC 3681.

6. Per contra, learned advocate for the respondent has supported the conclusion and findings arrived at by the trial court while allowing the application Exh.101 permitting the proposed respondent as a party. It is further submitted that the suit property was purchased by the proposed defendant by registered sale-deed dated 27.02.2008 from Pasabhai Virchandbhai Prajapati and he was in possession having interest, and therefore, he was necessary party being a