1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs:-
"(a) Present Special Civil Application may kindly be allowed. Order Dt.22.6.2011 passed by Ld. Principle Senior Civil Judge, Gondal below application Exh.12 in Special Civil Suit No.46 of 2010 may kindly be quashed and set aside. Application No.12 may kindly be dismissed.
(b) Pending admission and final hearing of the present Special Civil Application operation or implementation of the impugned order Dt.22.6.2011 passed by Ld. Principle Senior Civil Judge, Gondal below application Exh.12 in Special Civil Suit No.46 of 2010 may kindly be stayed.
(c) Any other and further relief, which this Hon'ble Court deems fit may kindly be granted in the interest of justice."
2. The relevant facts that can be culled out from the record of the petition are as under:-
2.1.
Respondent No.1 herein - original plaintiff has filed civil suit which came to be registered as Special Civil Suit No.46 of 2010 against opponent Nos.2 to 8 herein for declaration and injunction. In the said suit, respondent No.1 has alleged that respondent No.1-original plaintiff had entered into an agreement to sale with original defendant No.1 for purchase of the property being land situated at village: Ardoi, Taluka: Kotdasangani, District: Rajkot, as described in the plaint in paragraph No.9. It is also alleged by respondent No.1-original plaintiff that original defendant No.1 handed over the possession of the suit property and had also agreed to receive the balance consideration. It is the case of respondent No.1-original plaintiff that original defendant No.1 entered into agreement to sale with original defendant Nos.2 to 6 and, on the basis of such an agreement to sale, had obtained possession of the suit property from whom, respondent No.1-original plaintiff has acquired possession of the suit property. It further transpires from the record that even defendant No.1 of Special Civil Suit No.46 of 2010 has also filed a suit for specific performance of contract against defendant Nos.2 to 6 of Special Civil Suit No.46 of 2010. It is a matter of record that Special Civil Suit No.36 of 2010 came to be withdrawn.
3. It is the case of the petitioners that being unaware about the proceedings, as aforesaid, as bonafide purchasers, they have purchased the suit property on 20.08.2010 and that they are the bona fide purchasers. It is the case of the petitioners that even their names have been mutated in the revenue records.
4. It transpires from the record that as respondent No.1-original plaintiff came to know about this, he filed application Exh.12 under the provisions of Order 1 Rule 10 for joining the present petitioners as parties in the said suit. Summons by way of a public notice came to be issued in the newspaper. In response to the said notice, the petitioners appeared before the learned trial Court and contested application Exh.12. By impugned order dated 22.06.2011, the learned trail Judge has been pleased to allow the said application Exh.12 and has also been pleased to direct the present petitioners to be added as defendant Nos.8 to 13 in Special Civil Suit No.46 of 2010. Being aggrieved by the said order, the present petition is filed.
5. Heard Mr.Bhavesh Trivedi, learned counsel appearing for the petitioners and Mr.Y.J. Patel, learned counsel appearing for respondent No.1.
6. Mr.Bhavesh Trivedi, learned counsel for the petitioners has taken this Court through the factual matrix of the matter and the order impugned in the present petition. Mr.Trivedi, learned counsel submitted that the trial Court has committed material illegality of law and has not considered the fact that the petitioners are the bonafide purchasers for value without notice and, therefore, they cannot be joined as parties to the present suit. Mr.Trivedi, learned counsel further submitted that the learned trial Court ought to have appreciated the fact that there is no privity of contract between respondent No.1-original plaintiff and the petitioners. It was also submitted that the trial Court has, without considering the fact, that the petitioners are the bonafide purchasers for valuable consideration without notice and that they have clear title in their favour, has wrongly allowed application Exh.12. Mr.Trivedi, learned counsel submitted that the petitioners being lawful owners of the suit property, no decree can be passed in favour of respondent No.1-original plaintiff and against the petitioners, as prayed for, in the suit. Mr.Trivedi, learned counsel also pointed out that there was no stay granted by the learned trial Court and, therefore, there was no restrain in disposing of the suit property. Mr.Trivedi, learned counsel submitted that the learned trial Court has misconstrued the provisions of Order 1 Rule 10 of the Code of Civil Procedure and has wrongly exercised the jurisdiction and, therefore, the impugned order deserves to be quashed and set aside. Mr.Trivedi, learned counsel further submitted that the learned trial Court has failed to consider the submissions made by the petitioners and has not considered the judgments cited before it.
7. Mr.Trivedi, learned counsel has relied upon the following decisions in support of the contentions made by him in the petition:-
"(i) Mumbai International Airport Pvt.Ltd. V/s. Regency Convention Centre and Hotels Pvt.Ltd. and Ors. reported in AIR 2010 SC 3109;
(ii) Sunil Gupta V/s. Kiran Girhotra and Ors. reported in AIR 2008 SC 140;
(iii) Kasturi V/s. Iyyamperumal and others reported in AIR 2005 SC 2813(1);
(iv) Bharat Karsondas Thakkar V/s. M/s.Kiran Construction Co. & Ors. reported in 2008(3) G.L.H. 19;
(v) Kiritbhai Chhaganbhai Vekaria and Ors. V/s. Jagdishbhai Bhanubhai Bhadani and Ors. reported in 2009(2) G.L.H. 467;
(vi) Rasiklal Shankerlal Soni V/s. Natverlal Shankerlal Upadhaya and others reported in AIR 1975 Gujarat 178(1)."
8. As against this, Mr.Y.J. Patel, learned counsel appearing for respondent No.1-original plaintiff has supported the order impugned in the present petition.
9. It appears from the record of the petition that the petitioners herein have purchased the suit property by registered sale deed dated 20.08.2010 and even their names have been mutated in the revenue records and the entry of which is also certified on 13.10.2010.
10. It is pertinent to note that original defendant Nos.2 to 6 in present suit i.e. Special Civil Suit No.46 of 2010 are the original owners of the suit property. It appears from the perusal of the two sale deeds executed in favour of the present petitioners that the petitioners have purchased the suit property from defendant Nos.2 to 5. It appears from the record of the petition, more particularly, on perusal of application Exh.12 that respondent No.1-original plaintiff filed an application to consolidate the hearing of Special Civil Suit No.36 of 2010 as well as the present suit being Special Civil Suit No.46 of 2010 and, while the said application was pending along with the present suit, deeds have been executed on 20.08.2010 and earlier Special Civil Suit No.36 of 2010 has been withdrawn. On perusal of the order impugned, it is found that the learned trial Court has merely noted the contentions of both the sides and by merely reiterating the same, has come to the conclusion that the judgments cited before it are not applicable to the present case and has also come to the conclusion that the petitioners herein are the necessary parties to the present suit in order to avoid any further litigation.
11. It appears that the learned trial Court has not dealt with the contentions raised in application Exh.12 as well as reply and the judgments cited before it and has thereby committed error apparent on the face of the record which requires interference of this Court in its extraordinary jurisdiction under Articles 226 and/or 227 of the Constitution of India. The learned trial Court has not examined application Exh.12 in light of the provisions of Order 1 Rule 10 of the Code of Civil Procedure.
Considering the view taken by this Court as below, judgments cited by Mr.Trivedi, learned counsel for the petitioners, do not require any further elaboration.
12. Hence, the petition deserves to be accepted and the order impugned in the petition deserves to be quashed and set aside and remanded back to the trial Court for reconsideration of the said application Exh.12.It would be open for the parties to raise all the contentions as available and the trial Court is directed to decide application Exh.12 afresh after giving opportunity of hearing to all the parties in accordance with law without being influenced by this order, as expeditiously as possible. With these observations, the petition is allowed. The impugned order dated 22.06.2011 passed by the learned Principal Senior Civil Judge, Gondal is hereby quashed and set aside and application Exh.12 is remanded back for its rehearing, as directed above. Interim relief stands vacated. Parties to bear their own cost.
(R.M.CHHAYA, J.) Hitesh Top