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Legal Heirs & Reps of Decd. Owner of Prakash Transport Company Namely Vasudevbhai Purohit v/s Tarlaben Mahendrakumar Shah

    Special Civil Application No. 17372 of 2019

    Decided On, 23 February 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

    For the Appearing Parties: Ankit Y. Bachani, Dhaval V. Shah, Advocates.



Judgment Text

1. This petition, under Article 227 of the Constitution of India, is filed by the petitioner - original defendant No. 1 challenging the orders dated 20.07.2019 and 05.07.2018, respectively passed below exhs. 129 and 67 in HRP Suit No. 2553 of 2005 by the learned Judge, Court No. 10, Small Cause Court, Ahmedabad. By application exh. 67 under O.1 R.10(2), O.6 R.17 and section 151 of the Civil Procedure Code, 1908 (CPC) it was prayed to join the applicant as a party defendant being proper and necessary party in the suit. It was also prayed to delete existing defendants of the suit in question, who are the legal heirs and representative of the original deceased defendant. The said application came to be allowed in part and the applicant therein (present respondent No. 2) was permitted to be joined as party defendant No. 2 in the suit. Further, application exh. 129 was filed by the plaintiff under O.6 R.17 of the CPC for amendment of plaint, which also came to be allowed.

2. Rule. Learned advocate Mr. Dhaval V. Shah for the respondent waives service. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

3. Heard, learned advocate Mr. Ankit Y. Bachani for the petitioners and learned advocate Mr. Dhaval V. Shah for the respondents.

3.1 The learned advocate for the petitioners vehemently and fervently argued that the present petitioners are the heirs of original deceased original defendant No. 1 namely - Vasudevbhai Purohit, whereas, the respondents herein are the original plaintiff and original defendant No. 2 in the suit, respectively. He further submitted that the suit in question is filed by the plaintiff for vacating the suit premises and getting possession of the suit property and for the arrears of rent of Rs.69,600/-. In the said suit, the petitioners - defendants filed written statement on 23.04.2007. The learned advocate for the petitioners - defendants submitted that after a lapse of more than 10 years, an application, exh. 67, under O.1 R.10(2) of the CPC came to be filed by the respondent No. 2 herein - original defendant No. 2 for joining her as a party defendant in the suit in question. He further submitted that after the aforesaid application exh. 67 for joining party came to be allowed by an order dated 05.07.2018, an amendment application, exh. 129 under O.6 R.17 CPC, was filed by the respondent No. 1 herein - original plaintiff on 13.02.2019, which also came to be allowed by the learned Court below. It is submitted that the learned trial Judge has, without going into the merits and without verifying the documentary evidence on record, has passed the impugned orders. He further submitted that without ascertaining the veracity and credential of the document (Dissolution of Partnership Deed) has passed the impugned order dated 05.07.2018. Further, it is submitted that by allowing such amendment (by way of exh. 129), the nature of the suit gets changed, which is against the settled principles of law.

3.2 Inviting attention of the Court to the order dated 05.07.2018 passed below application exh. 67 for joining as a party defendant, the learned advocate for the petitioners submitted that the learned trial Judge has observed therein that, 'there was partnership between the present deceased defendant Vasudev Purohit and proposed party Sushilaben as well as other partners and that partnership was dissolved in the year 2008 and the proposed party became the proprietor of Prakash Transport Co. i.e. the plaintiff. This document can also be proved at later stage. The registration certificate of Prakash Transport Co. vide Mark-74/2 is showing the registration place at Deesa'. It is also observed that, 'Therefore, if company is registered in Deesa and it's godown (rent premises) is situated in Ahmedabad, then it makes no serious damage to the present application. Furthermore, the plaintiff, himself, has shown address of rent premises in Ahmedabad and deceased defendant's another address in Deesa. So, this fact also goes in favour of the proposed party'. He further submitted that, the learned trial Judge has reasoned that, 'the plaintiff has raised some contentions with regard to the documents produced by the proposed party, but in the interest of justice, the proposed party can be given a fair chance to prove her documents and her rights. It is also required to allow this application to avoid the multiplicity of the proceedings' and eventually, allowed the said application in part.

3.3 The learned advocate for the petitioners further took this Court to the amendment application, exh. 129, given by the original plaintiff - respondent No. 1 herein in the suit and submitted that by the said application it was prayed to add new paragraph 3/B to the effect that, 'in this suit, defendant No. 2 is joined as a party. As per the evidence of defendant No. 1/3, defendant No. 2 is the original tenant and the defendant No. 1 is the occupant. And hence, as per the plaintiff, the defendant No. 2 has transferred the possession of the suit property to the defendant No. 1 on rent or by subletting and thereby, the said transfer by the defendant No. 2 of the suit premises to the heirs of defendant No. 1 is being illegal and unlawful, the plaintiff is entitled to have vacant, peaceful and direct possession of the suit property'. Drawing attention of the Court to the Dissolution of Partnership Deed dated 13.03.2008, he submitted that the partnership was dissolved in the year 2008, whereas, the suit is of 2005 and the application exh. 67 for joining party was given in 2018, to be precise, on 02.04.2018 and therefore, in the submission of the learned advocate for the petitioners, the same cannot be effected to and the learned trial Judge has committed gross error in allowing the said application and subsequent amendment application. Making such submissions, he urged that the present writ petition may be allowed and the impugned orders may be set aside.

4. Per contra, learned advocate for the respondent, while heavily opposing the present petition and negating the submissions of the learned advocate for the petitioners, submitted that the suit in question is filed not only for the arrears of rent but is also for the possession of the suit premises. He also drew attention of the Court to the Dissolution of Partnership Deed, produced at Annexure 'R2, page 59 to this petition, which clearly indicates that the respondent No. 2 herein - original defendant No. 2 has become owner of Prakash Transport Co. by virtue of the said dissolution deed and accordingly, it is submitted that when the said document is already on record, which the original plaintiff, respondent No. 1 herein came to know at a later stage and hence, so as to avoid decree becoming nullity for want of proper and necessary party, application for joining party was made so also the application for amendment of the plaint and the learned trial Judge has, after due appreciation of the documents on record as well as considering the facts and circumstances of the case, rightly passed the orders impugned herein. He submitted that even in the Income-tax Returns also, the rent is shown as deposited. Accordingly, the impugned orders having been passed after due application of mind and require no interference at the hands of this Court, it is urged that present writ petition, being devoid of any merits, deserves to be dismissed.

5. In-Re, learned advocate Mr. Bachani for the petitioners submitted qua application for joining party that, as per the say of the respondent No. 2 herein - original defendant No. 2, she came to know about pendency of the suit through police while inquiry as to some disputes with regard to some property, however, the learned trial Judge has not taken into consideration any such documents to that effect and therefore, also, the application for joining party is against the settled principles of law and the order passed thereon, requires to be set aside.

6. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the averments made in the present writ petition, so also, the documents produced on record, it appears that the controversy in the instant writ petition rests upon orders passed on the applications for joining party and consequent amendment in the main suit pending before the learned trial Court concerned. The respondent No. 2 herein was sought to be joined as a party defendant in the suit proceedings consequent upon a Dissolution of Partnership Deed produced on the records of the suit (Annexure 'R2', page 59) by which, the respondent No. 2 got the status as sole proprietor of Prakash Transport Co. It is pertinent to note at this stage that the suit premises is a rented premises, in the occupation of the aforesaid Prakash Transport Co., which was originally a partnership firm and the present petitioners as well as the respondent No. 2 herein - original defendant No. 2 were the partners thereof. It is also pertinent to note here that by virtue above-referred Dissolution of Partnership Deed dated 13.03.2008, the said partnership came to be dissolved and the respondent No. 2 - original defendant No. 2 got the sole proprietary rights therein.

6.1 In the said sets of circumstances, the concept of necessary and proper party is required to be delved in. A necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

6.2 At this juncture, it would also be beneficial to refer to the provisions of O.1 R.10 and 9 of the CPC, which read as under:

"10. Suit in name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted throught a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant

(5) Subject to the provisions of the 2Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

9. Misjoinder and nonjoinder.-No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

[Provided that nothing in this rule shall apply to non-joinder of a necessary party.] "

6.3 Thus, by virtue of O.1 R.10(2), the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

6.4 Further, the provisions of Rule 9 does not apply to nonjoinder of a necessary party.

6.5 Coming to the facts of the case, as is said earlier in the preceding paragraph of this judgment that by way of a dissolution deed, the respondent No. 2 herein became the sole proprietor of the firm in question against which, substantive reliefs have been sought for in the suit in question. It is this firm, which is vested in the respondent No. 2 and accordingly, in the opinion of this Court, the respondent No. 2 becomes the necessary party without whom no order can be made effectively.

6.6 So far as the so-called Dissolution of Partnership Deed is concerned, the learned trial Judge has observed in paragraph 6, in second part of the order dated 05.07.2018, passed below exh. 67 for joining party that, 'the proposed party has produced one written document vide Mark-70/1 from which can not be treated as Rent Agreement, but this document shows relation between the plaintiff and Prakash Transport Company and it is possession of the proposed party. If proposed party has no concern with the rent premises then how she is in possession of the document. This document, in original form, can be produced and can be proved at later stage'. Thus, for ascertaining veracity of the said document, the petitioners can very well resort to the remedy available to them under the law. The learned trial Judge has, further, observed in part 4 of the said paragraph (6) that, '....The registration certificate of Prakash Transport Company vide Mark-74/2 is showing the registration place at Deesa. But mere on this ground, the application cannot be rejected because any company may have its godowns at various places according to its necessity and circulation of the business. Therefore, if company is registered in Deesa and it's godown (rent premises) is situated in Ahmedabad, then it makes no serious damage to the present application. Furthermore, the plaintiff, himself, has shown address of rent premisis (sic. premises) in Ahmedabad and deceased defendant's another address in Deesa. So, this fact also goes in favour of the proposed party'.

6.7 It is pertinent to note here that while allowing joining of respondent No. 2 as party defendant No. 2 in the original suit, the learned trial Judge has disallowed prayer qua deletion of present petitioners, who are original defendants, tilting the balance and with a view to effectively decide the suit in question, and to avoid multiplicity of proceedings.

6.8 So far as amendment application is concerned, by which, it is prayed that by the said application it was prayed to the effect that, 'in this suit, defendant No. 2 is joined as a party, as per the evidence of defendant No. 1/3, defendant No. 2 is the original tenant and the defendant No. 1 is the occupant. And hence, as per the plaintiff, the defendant No. 2 has transferred the possession of the suit property to the defendant No. 1 on rent or by subletting and thereby, the said trans

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fer by the defendant No. 2 of the suit premises to the heirs of defendant No. 1 is being illegal and unlawful, the plaintiff is entitled to have vacant, peaceful and direct possession of the suit property. When this Court has come to the conclusion that the respondent No. 2 is the necessary party without whom no effective adjudication can take place, in the circumstance, in the opinion of this Court, there is no harm in aforesaid amendment, as looking to the prayer made in the suit, it is also filed for arrears of rent vis-a-vis vacant and peaceful possession of the suit property. Further, by virtue of the Partnership Dissolution Deed, the partnership between the original defendant No. 1 and newly added defendant No. 2 stated to have been dissolved and the defendant No. 2 became the sole proprietor of the said firm and accordingly, when the prayer in the suit is to the effect, as aforesaid, in the opinion of this Court, nature of suit does not change as is asserted by the learned advocate for the petitioners - defendants and the learned trial Judge has rightly allowed such amendment application. 7. Thus, in view of the aforesaid discussion and observations, present petition found to be without any merits, requiring no interference at the hands of this Court. Present writ petition, accordingly, fails and is dismissed. 7.1 The order passed by the learned Judge, Small Cause Court, Ahmedabad, in HRP No. 2553 of 2005, dated 5.07.2018, partly allowing the application Exh. 67 as well as order dated 20.07.2019 passed by the learned Judge, Small Cause Court, Ahmedabad in HRP Suit No. 2553 of 2005, allowing the application Exh. 129 are hereby confirmed. Rule is discharged with no order as to costs.
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