1 This petition under Article 227 of the Constitution of India is filed by the petitioner, original defendant No.3, challenging the order dated 3.4.2012 passed by the learned 5th Additional Senior Civil Judge & ACJM, Bharuch, below application Exh.94, in Regular Civil Suit No.229 of 2009, by which, the request of the petitioner, original defendant No.3, under Order XIV Rule-2 of the Code of Civil Procedure, 1908, on the ground that the plaintiff claims two identities, namely, [i] Patel Abdul Latif and [ii] Patel Abdul Mohme, who, on the date of the filing of the suit, was non-suited and, therefore, an issue was necessary to be framed as a preliminary issue, came to be rejected.
2 Upon consideration of factual aspects, in paragraphs 2.1, 2.2,3 and 4, the trial court noticed and observed, as under:
"2.1 That he was born in India. His father Hussein Vali Jiru's native place is village Kantharia, Ta. Dist. Bharuch, That he went to U.K. on 4.2.1968. That his real father got married with (1) Bibiben (dead), (2) Ayesha (divorced), (3) Amanben (divorced) and (4) Fatma (divorced). That his real mother Ayeshaben was divorced by his real father and therefore she remarried with Mohamed Patel. That due to this family dispute/disturbance, his real mother assisted him and requested his stepfather to take him along to U.K. That as his real mother went to U.K. with the said Mohamed Patel for enjoying conjugal rights, the said Mohamed Patel, in capacity of caretaker took plaintiff along with him as a social responsibility. Thus, the plaintiff is also known as Abdul Mohamed Patel and the said name is his nickname and therefore Birtish Government issued him passport in the said name with name of his stepfather. The old Passport No.102793227 was issued in Abdul Mohamed Patel's name whereas the new Passport no.503372573 has been issued in Abdul Latif Patel's name.
2.2. He has further stated that his full name is Abdullatif, short name is Abdul, Caste Surname is Patel, Family surname is Jiru, Real father's name is Hussein Vali Musa Jiru, Real mother's name is Ayeshaben and original place of residence is at Post Kantharia, Ta. Dist. Bharuch. That his real father Hussein Vali Musa Jiru died on 6.1.1984 and therefore plaintiff's name was entered in Revenue Records in capacity of heir of late Hussein Vali Musa Jiru. That in view of the above as Abdullatif Hussein Vali Jiru and Abdul Mohamed Patel are one and the same person and not two different persons and nothing was concealed, the present application is false and made only with a view to harass and in view of the above requires lengthy oral as well as documentary evidence. Thus, as the present question is a mixed question of law and facts which can be decided only by leading evidence, the same cannot be decided as a preliminary issue and therefore it has been prayed that the present application be dismissed with costs. In support of the present reply the plaintiff has produced documentary evidence vide list Exh.93 and also relied upon documents especially the revenue record produced earlier.
3. I have heard Ld. Advocate Mr. I. J. Gandhi for the defendant No.3 and Mr. A.T. Panwala for the plaintiff and also perused the records. Mr. Gandhi has vehemently argued that as on the date of filing of the present suit the plaintiff was not known as Abdul Latif Hussein Vali Jiru, he cannot file the same in the said name and therefore has submitted that the present suit is liable to be dismissed on this sole ground. Per contra, Mr. Panwala has mainly referring to the details mentioned in the above reply submitted that the plaintiff is originally known as Abdul Latif Hussein Vali Jiru and even otherwise, it is not the case of the defendants in general and defendant No.3 in particular that the plaintiff is not a heir of deceased Hussein Vali Musa Jiru, the plaintiff has every right to file the present suit in the same name and merely as he migrated to U.K. with his stepfather's name, he cannot be deprived of his rights in his late (real) father's properties. He has also submitted that even otherwise the question posed by the defendant N.3 is purely a question of fact, the same cannot be decided as a preliminary issue.
4 Considering the rival contentions, above submissions made on behalf of the contesting parties along with the documentary evidence produced vide list Exh.93 as well as the revenue records produced earlier, it is apparent that the defendant No.3 is not disputing the identity of the plaintiff. He is merely raising the dispute that on the date of filing of the suit the plaintiff was not known as Abdul Latif Hussein Vali Jiru. Even otherwise, it is nobody's case that plaintiff is not the person whom he claims to be. However, considering the fact that even if the suit is filed in wrong name or in name of wrong plaintiff, the said defect is curable and it cannot be dismissed solely on the said ground. That apart, as the identity of the plaintiff is not disputed, and merely because he immigrated in an assumed name (with stepfather's name) and held a passport in the said name, he cannot be deprived of his rights, if any, in his real father's estate. Therefore, any findings as to whether he held particular identity on a particular date cannot, in peculiar facts of the present case, have any bearings on the merits of this case. Especially because of the fact that the explanation furnished by the plaintiff and supported by documentary aforesaid evidence, is quite plausible. Therefore, the question posed by the Ld. Adv. for the defendant No.3 can in no circumstances be tried as a preliminary issue and therefore in the interest of justice, the following order is passed."
3 In the backdrop of the above facts, Mr. M.B. Gandhi, learned counsel for the petitioner, original defendant No.3, would submit that, by rejecting the application Exh.94 under Order XIV Rule-2 of the Code of Civil Procedure, 1908, the learned Judge has committed an error, in as much as, on the date of filing of the suit, the plaintiff was a British Citizen and was not entitled to file a suit as "Abdul Latif Hussein Vali Jiru/Patel'. It is next contended that, for examining the real identity, no detailed scrutiny of evidence was necessary, in as much as, the British passport of the plaintiff and other relevant documents were placed on record. That the plaintiff, who has filed the suit, and the name of his father, which is named in the passport, is outside the family. On that ground also, considering the title of the suit, the prayer for declaration and permanent injunction was not maintainable. The above aspect is overlooked by the learned Judge in the context of Muslim law where there is nothing like partition or inheritance or a concept of joint family unlike Hindu law. It is, therefore, submitted that the learned Judge has erred in rejecting the application Exh.94 as prayed for.
4 Upon consideration of the submissions of the learned counsel for the petitioner and on perusal of the order impugned along with relevant documents annexed with the petition including a copy of the plaint, I am of the view that the prima-facie finding of the trial court about the plaintiff, respondent herein, taken to the United Kingdom by his step-father to whom the mother [divorcee] of the plaintiff had married and, as a part of social responsibility and welfare, the plaintiff has British citizenship by virtue of which, if any legal right is available in the property of his real father, which is yet to be considered by leading full-fledged evidence, rejection of application Exh.94 as prayed for by the petitioner, original defendant No.3, considering it as a mixed question of fact and law, cannot be said to be, in any manner, illegal or contrary to the settled principles of law, which deserves any interference by this Court in exercise of power under Article 227 of the Constitution of India. In absence of merit, this petition is rejected summarily with no order as to costs.
(ANANT S. DAVE, J.) (swamy) Top