Gujarat High Court Case Information System
Print
SCA/5781/2009 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5781 of 2009
=====================================================
HARESHBHAI
KESHAVBHAI NAVAPARA - Petitioner(s)
Versus
SHANTABEN
DAHYABHAI & 4 - Respondent(s)
=====================================================
Appearance :
MR
MEHUL SHARAD SHAH for Petitioner(s) : 1,
None for Respondent(s) :
1 - 5.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 24/06/2009
ORAL
ORDER
1. This
petition has been filed under Articles 226 and 227 of the
Constitution of India with a prayer to quash and set aside the order
dated 6-5-2009 passed by the learned 5th Addl.Senior Civil
Judge,Surat, below application Exh.49 in Special Civil Suit No.363 of
2007 whereby the application preferred by the third party(sister of
the original plaintiff/Respondent No.1)for joining as party to the
suit,has been allowed.
2. The
brief facts of the case are that the respondents Nos.1 to 3
herein(original plaintiffs) have filed Special Civil Suit No.363 of
2007 in the Court of learned Principal Senior Civil Judge,Surat for
declaration and permanent injunction to set aside the sale deed vide
which the petitioner,original defendant No.2 claimed to have
purchased the suit property through the Power of Attorney of the
original plaintiffs. The case of the original plaintiffs is that, no
such Power of Attorney has been executed in favour of defendant
No.1,Power of Attorney and, therefore, the Sale Deed could not have
been executed by the defendant No.1 in favour of the
petitioner(original defendant No.2).
3. The
third party i.e. sister of the original plaintiff/Respondent No.1
preferred an application at Exh.49, to be joined as party to the
Civil Suit as,according to her, she has a right in the suit property
and is, therefore, a necessary party. This application was opposed by
the petitioner by filing a reply, and arguments were addressed by the
parties. By impugned order dated 6-5-2009, the application of the
third party was allowed and she was directed to be joined as
party-defendant in the Civil Suit. It is this order that has been
impugned in the present petition.
4. Mr.Mehul
S.Shah, learned counsel for the petitioner, has submitted that the
third party,though sister of the respondent No.1, has relinquished
her right in the property in the year 1983 and there is a revenue
entry to this effect. It is urged that after such a long period of
time she cannot now claim any share in the property. It is contended
that in the application preferred by the third party for being joined
as a party to the Civil Suit, no specific prayer has been made
whether she should be joined as plaintiff or defendant and the Court
has wrongly joined her as a defendant in the Civil Suit. It is
further contended that in the application for joining as party, there
is no prayer against the respondent No.1(original plaintiff No.1) and
the issue whether the third party has a share or right in the suit
property,cannot be decided in the present suit,wherein a declaration
to the effect that the Power of Attorney is null and void, and the
Sale Deed should be set aside,has been sought and,therefore, the
impugned order is not in accordance with law and deserves to be
quashed and set aside.
5. I
have heard learned counsel for the petitioner at considerable length
and perused the contents of the impugned order as well as other
documents on record. While passing the impugned order,the learned
Judge has taken into consideration the aspect that the third party is
closely related to the respondent No.1-original plaintiff No.1 and
has claimed that she has a right in the suit property, which is the
subject matter of the disputed sale deed and in order to avoid
multiplicity of proceedings,she deserves to be joined as
party-defendant, so that the matter can be adjudicated upon merits.
6. The
submissions made by the learned counsel for the petitioner are not
deserving of acceptance, as the right or title to suit property is
not the subject matter of the application and by the impugned order,
the third party has been permitted to join as party defendant, in the
facts and circumstances of the case. No prejudice or loss can be
caused to the petitioner, whereas contentious litigation can be
avoided by joining the third party.
7. On
perusal of the impugned order,it does not appear that any illegality
or jurisdictional error has been committed by the learned trial
Judge. The supervisory jurisdiction under Article 227 of the
Constitution of India is not available to correct errors of fact or
law. In the present case, no error is manifest or apparent on the
face of the proceedings, and nor does it appear that any provision of
law has been infringed or grave injustice or failure of justice has
been occasioned. In the above circumstances, keeping in mind the
settled principles of law for exercise of jurisdiction under Article
227 of the Constitution of India, no interference is warranted. The
petition is devoid of merit and deserves to be dismissed. It is,
accordingly, dismissed.
(Smt.Abhilasha Kumari,J)
arg
Top