JUDGMENT :

1. Rule.

2. This petition, under Article 227 of the Constitution of India, is filed by the petitioner against an order dated 03.10.2019 passed by the learned Principal Senior Civil Judge, Halvad below Exh. 25 in Special Civil Suit No. 5 of 2018. By the said application, the petitioner – original plaintiff had sought to join the respondent Nos. 9 and 10 herein as party defendant Nos. 9 and 10 in the said suit, which came to be rejected vide impugned order.

3. Facts in nutshell of the case on hand are that on 27.09.1999, the respondent Nos. 1, 9 and 10 executed an Agreement to Sell qua the suit property in favour of the petitioner and handed over the possession as well as issued the acknowledgment receipt of sale consideration. On the same date, the said respondents also executed a irrevocable Power of Attorney in favour of one Mansukhbhai Savjibhai Patel, who is the father-in-law of the petitioner. After conversion of the said land into the old tenure land, on 07.04.2016, the said respondents also executed a sale deed in favour of the petitioner herein. However, subsequently, on 10.05.2016, the respondent Nos. 1 to 4, allegedly, in connivance with the respondent Nos. 5 to 8, executed a sale deed qua the very same property in favour of the respondent Nos. 5 to 8. Accordingly, the petitioners preferred the captioned suit for declaration, permanent injunction and cancellation of sale deed in which application Exh. 5 came to be allowed by the learned trial Court. Therefore, the respondent Nos. 1 to 8 preferred Appeal from Order No. 333 of 2016, which came to be allowed in part by way of a judgment and order dated 22.03.2017 and the parties to the suit were restrained from transferring or creating any right, title or interest over the disputed property till final disposal of the suit. The said judgment and order came to be challenged before the Apex Court, in which, by an order dated 01.05.2017, the Apex Court disposed of the said SLP (C) Nos. 12804-12805/2017 with a direction to the trial Court to decide the suit within one year. Pending application, the petitioner – plaintiff filed an application under O.1 R.10 of the Civil Procedure Code, 1908 (the CPC) for joining party, to join the respondent Nos. 9 and 10 herein as party defendant Nos. 9 and 10 in the pending suit, which came to be rejected by impugned order dated 03.10.2019 and hence, the grieved petitioner is before this Court with this petition.

4. Heard Shri Jal S. Unwalla, Senior Advocate, learned counsel with Mr. Sandeep R. Limbani, learned advocate for the petitioner, Mr. Gaurav Chudasama, learned advocate for the respondent Nos. 5 to 8 and Mr. Vishal C. Mehta, learned advocate for the respondent Nos. 9 and 10. Though served, as refused, nobody has put in appearance qua respondent Nos. 1 to 4.

4.1 The learned senior counsel for the petitioner submitted that the order of the trial Court suffers material illegality and perversity inasmuch as, the learned trial Judge has failed to appreciate the fact that the proposed defendant Nos. 9 and 10 are the necessary party so as to decide the real issue involved in the suit. He submitted that the learned trial Judge has failed to appreciate the provisions of O.1 R.10 of the CPC in letter and spirit. The learned senior counsel for the petitioner submitted that the respondent Nos. 1, 9 and 10 jointly executed an Agreement to Sell in favour of the petitioner herein and thereafter, the sale deed and also handed over the possession of the suit property. Further, acknowledgment of receipt of sale consideration is also issued on behalf of the said respondents, and therefore also, it is quite clear that the said respondents are the necessary party in the suit, however, the learned trial Judge has failed to take into consideration the said aspect of the matter and thereby, has erred in rejecting the application in question.

4.2 The learned senior counsel for the petitioner submitted that the learned trial Judge ought to have taken int