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SCA/1313520/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13135 of 2008
==========================================
FATIMABEN
W/O BHIKHABHAI CHOTHIYA & 5 - Petitioner(s)
Versus
SETH
DEVIKABEN AMITBHAI THROUGH ATTORNEY & 1 - Respondent(s)
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Appearance
:
MR LM
CHHABLANI for Petitioner(s) : 1 - 6.
None for
Respondent(s) : 1 - 2.
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/10/2008
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India
the petitioners-third parties have prayed for an appropriate writ,
order or direction quashing and setting aside the order passed by the
learned 3rd Additional Civil Judge, Modasa dated
25/09/2008 below Exh. 8 in Regular Civil Suit No. 62/2007 by which
the application submitted by the petitioners-third parties under
Order 1 Rule 10 of the Code of Civil Procedure for joining them as
defendants in the aforesaid suit is dismissed.
2. Shri
Chhablani, learned advocate appearing on behalf of the petitioners
has submitted that the petitioners are necessary and interested
parties in the aforesaid suit as the petitioners claim to be owners
of the property in question for which the suit has been filed and
respondent no. 1 original plaintiff also claim to be the owner of the
said property and in the suit filed by the petitioners, order with
respect to possession has been passed and, therefore, if any decree
is passed in favour of respondent no. 1-original plaintiff, the order
of possession passed by the other Court will directly go into
conflict and, therefore, the learned trial Court ought to have
allowed the application submitted by the petitioners.
3. Having
heard Shri Chhablani, learned advocate appearing on behalf of the
petitioners and considering the nature of the suit filed before the
learned trial Court by respondent no. 1-original plaintiff and the
impugned order, it appears that the suit has been filed against
respondent no. 2-original defendant for recovery of possession, which
according to respondent no.1-original plaintiff, respondent
no.2-original defendant is occupying as a tenant. Now, if the
petitioners are permitted to be joined as defendants in the suit for
recovery of possession from respondent no. 2-original defendant, the
suit should be converted into the suit for title. In the said suit,
dispute between the petitioners herein-third parties and respondent
no. 1-original plaintiff with respect to title is not subject
matter of the suit.
4. Considering
the decision of the Hon’ble Supreme Court in the case of KASTURI
Vs IYYAMPERUMAL AND ORS reported in (2005) 6 SCC 733, the
impugned order passed by the learned trial Court does not warrant
any interference in exercise of powers under Article 227 of the
Constitution of India.
5. For
the aforesaid reasons and looking to the nature and the prayer in the
suit, the application of the petitioners to be joined as a party
defendant is rightly rejected by the learned trial Court. No
interference of this Court is called for in exercise of powers under
Article 227 of the Constitution of India. Hence, the present
Special Civil Application deserves dismissal and is dismissed
accordingly.
(M.R.
SHAH, J.)
siji
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