IMPORTANT POINT
Relief under O.1 R.10 and O.6 R.17 of CPC are based on different cause and different contentions and combined application is not maintainable.

JUDGMENT (CAV)

Rule. Learned Advocate Mr.S P Majmudar appearing for the contesting respondent waives service of notice of rule. This petition under Article 227 of the Constitution of India is directed against the order dated 21/06/2008 passed below Exhibit-24 in Special Civil Suit No.32 of 2008 by the learned 3rd Additional Senior Civil Judge, Jamnagar; whereby the application filed by the plaintiff to join subsequent purchaser Shri Bhavesh Arshibhai Kandoriya as defendant no.10 in the suit has been rejected inter alia on the ground that the plaintiff has not registered notice of suit as per amendment in Section 52 of the Transfer of Property Act 1882 (for short the “Act”) applicable to the State of Gujarat and State of Maharashtra as to attract the principle of lis pendens.

2. Necessary facts for adjudication this petition can be summarized thus:—

2.1 The petitioner–plaintiff filed suit being Special Civil Suit No.32 of 2008 for partition and separate possession against several defendants before the learned Principal Senior Civil Judge, Jamnagar in respect of the land being Revenue Survey No.1092 1-08-25 hectare (in short “subject matter”). Plaintiff moved an application below Exhibit-24 in the suit under O.6 R.17 read with O.1 R.10 of the Code of Civil Procedure (for short the CPC) to join the subsequent purchaser of the suit property. In the said application, it is stated that plaintiff has filed the suit on 24/03/2008; defendant no.1, 3, 5 and 7 who are living at the given address have evaded the service of the process and on 29/03/2008 and 31/03/2008, defendant nos.1 to 7 have filed reply declaring that they have sold the subject matter by way of registered sale-deed to said Bhavesh Arshibhai Kandoriya. Upon such contention, petitioner filed application at Exhibit-24 seeking amendment in the pleading and the relief claimed in the suit and also to join the subsequent purchaser Bhavesh Arshibhai Kandoriya as defendant no.10 which came to be rejected by the learned Court below observing that it is mandatory to register notice of the suit under Section 52 of the Transfer of Property Act as applicable in the State of Gujarat. It is further observed by the learned Court below that in absence of lis pendens slated under Section 52 of the Act, applicable in State of Gujarat, the purchaser is bonafide purchaser and therefore he is not required to be joined as party defendant in the suit. Accordingly, rejected the application at Exh.24 which order is impugned in the petition.

2.2 This Court (Coram: Akil Kureshi, J.) vide order dated 30/09/2008 allowed this petition and ordered to join the subsequent purchaser as party defendant in the suit observing that the issue of bonafide nature of transaction involved in the sale of portion of the suit land cannot be decided at this juncture while deciding application Exhibit-24. It is a premature decision and as such for the purpose of avoiding the multiplicity of proceedings allowed the petition and further granted relief as prayed for in application at Exhibit-24. The relevant observations and finding arrived by this Court in paragraph 4 to 7 reads thus:—

“4. In my view, learned Judge committed serious error in not accepting application exh.24, particularly on the ground mentioned in the impugned order. It was premature to hold that the purchase was bona fide. Such conclusion could have been reached only after a fair trial. In any case, I find that the plaintiffs who wanted to bring additional averments and new developments on record, in facts of the present case, could not have been prevented from doing so. Disallowing amendment would only lead to multiplicity of the proceedings. There was also no allegation that amendment was sought belatedly or that the plaintiffs sought such an amendment at a late stage in the suit.

5. Under the circumstances, I find that impugned order is required to be set aside.

6. Contention of the Counsel for the respondent No.10 that granting of amendment would