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SCA/14767/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14767 of 2010
=========================================================
AMIT
MANUBHAI DESAI - Petitioner(s)
Versus
RAMANBHAI
AMBALAL PATEL & 2 - Respondent(s)
=========================================================
Appearance :
MR
PARTHIV B SHAH for
Petitioner(s) : 1,
NOTICE UNSERVED for Respondent(s) : 1,
None
for Respondent(s) : 2 - 3.
NOTICE SERVED for Respondent(s) :
2.2.1,2.2.2 - 3,3.2.2
MR JAYRAJ CHAUHAN for Respondent(s) :
2.2.1,2.2.2
MR SP MAJMUDAR for Respondent(s) : 3.2.1,3.2.2
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/02/2011
ORAL
ORDER
This
petition challenges the order dated 21/06/2010 passed by the learned
13th Additional Senior Civil Judge, Vadodara on
application below Exh.47 in Special Civil Suit No.175 of 2009 whereby
the trial Court has allowed the said application filed by respondent
No.2 for being impleaded as party defendant No.2 in the suit.
2. The
short facts of the case are that petitioner filed Special Civil Suit
No.175 of 2009 in the Court of learned Civil Judge, (SD), Vadodara.
Alongwith the suit, application Exh.5 for interim injunction was
filed. In the meantime, respondent No.3 filed the impugned
application below Exh.47 for impleading them as party defendant in
the suit. The said application was opposed but the Court below
allowed the said application which has given rise to the present
petition.
3. Learned
Advocate for the petitioner has mainly contended that the Court below
has not considered the reply filed by the petitioner and the
authorities cited by petitioner and if the respondent No.2/1 to 2/4
are allowed to be joined as party defendant in the suit it will
change the entire nature of the suit. Learned Advocate for the
petitioner has relied upon the decision of the Supreme Court in the
case of Mumbai International Airport Pvt. Ltd. Vs. Regency
Convention Centre & Hotels Pvt Ltd. & Ors.,
reported
in AIR 2010 SC 3109
He submitted that the order of the Court below may be quashed and set
aside.
4. Having
heard the learned Advocate for the petitioner and having perused the
order impugned in the petition, this Court is in complete agreement
with the findings recorded and conclusion arrived at by the Court
below. This Court is of the opinion that there is a previty of
contract between the parties and therefore proper adjudication of the
suit, respondent No.3 herein is proper and necessary party.
5. So
far as the decision of the Hon’ble Apex Court as relied upon by the
learned Advocate for the petitioner is concerned, paragraph No.12.2
and 12.3 set out that for determining the actual possession in the
suit for specific performance, necessary party may be permitted to be
joined as party defendant in the suit, which reads as under:
“12.2)
If the owner of a tenanted property enters into an agreement for sale
of such property without physical possession, in a suit for specific
performance by the purchaser, the tenant would not be a necessary
party. But if the suit for specific performance is filed with an
additional prayer for delivery of physical possession from the tenant
in possession, then the tenant will be a necessary party in so far as
the prayer for actual possession.
12.3)
If a person makes an application for being impleaded contending that
he is a necessary party, and if the court finds that he is a
necessary party, it can implead him. If the plaintiff opposes such
impleadment, then instead of impleading such a party, who is found to
be a necessary party, the court may proceed to dismiss the suit by
holding that the applicant was a necessary party and in his absence
the plaintiff was not entitled to any relief in the suit.”
6. I
am of the opinion that allowing the respondent No.3 as party
defendant in the suit, would not prejudice to the right of the
petitioner as a plaintiff in the suit. The petition is devoid of
merits and requires to be dismissed. Accordingly, the petition is
dismissed with no order as to costs. Notice is discharged.
(K
S JHAVERI, J.)
sompura
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