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CA/3097/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 3097 of 2010
In
LETTERS
PATENT APPEAL No. 657 of 2000
In
FIRST APPEAL No. 1879 of 1984
=========================================================
MANJULABEN
WD/O GUNVANTLAL RATANCHAND SHAH & 2 - Petitioner(s)
Versus
RAMESHBHAI
PURSHOTTAMDAS PATEL & 13 - Respondent(s)
=========================================================
Appearance
:
MR
KS NANAVATI Sr. Advocate with MR CG SHARMA
for
applicants
MR AJ PATEL and MR JR NANAVATI Senior Advocates for
Opponents : 1 - 5, 5.2.2, 5.2.3,5.2.4 - 7.
UNSERVED-REFUSED (N)
for Opponents : 8 - 10,10.2.2 -
12.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 15/09/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. This
application is made to recall the order dated 05.03.2001, whereby
this Court had granted leave to delete opponents No.8 to 12 in the
main L.P.A. and, in effect, to restore the names of opponents No.8 to
12 herein as respondents before final hearing of the L.P.A. takes
place. The facts relevant for the present purpose are that opponents
No.8 to 12 were all along parties to the original suit as well as
the First Appeal and they were duly joined as respondents in the
L.P.A. as well. Thereafter, according to the applicants, the parties
proposed to negotiate for a settlement and the dispute was sought to
be referred to Lok Adalat in the year 2001. Since no one was
appearing for respondents No.8 to 12, the appeal could not be
notified in the Lok Adalat held on 26.01.2001 and on subsequent date
of 05.03.2001. The parties appearing before the Court had, at that
time, agreed to go before the Lok Adalat for settlement of the
dispute. In view of the perception that opponents No.1 to 7 and 13
and 14 were the real contesting parties, leave to delete names of
opponents No.8 to 12 from the cause-title of the appeal was sought
and granted. Even after prolonged pendency of the appeal, efforts to
settle the dispute before the Lok Adalat and listing of the appeal
for hearing from time to time, opponents No.8 to 12 were not
formally deleted on record till the year 2008. Thereafter, when it
was realized that settlement was not possible either by direct
negotiation or through Lok Adalat and the matter was required to be
decided on merits, the applicants have submitted that opponents No.8
to 12 herein are required to be joined again as parties to do
complete justice and to avoid injustice to the opponents on any
technical ground. The fact remained that opponents No.8 to 12 have
never appeared in the First Appeal or the present appeal.
2. Relying
upon observations of the Apex Court in Amit Kumar
Shaw v. Farida Khatoon [(2005) 11 SCC 403], it was
submitted by learned senior advocate Mr.K.S.Nanavati, appearing for
the applicants, that the power of Court to add a party to a
proceeding cannot depend solely on the question whether he has
interest in the suit property. The question is whether the right of a
person may be affected if he is not added as a party. Learned
counsel also relied upon provisions of Order 41 Rule 20 of C.P.C.
whereunder plenary powers are conferred upon the appellate court to
direct joining of such person as a respondent who has been a party to
the suit. It is, however, also provided in sub-rule (2) that no
respondent shall be added under Rule 20 after expiry of the period of
limitation for appeal, unless the Court, for reasons to be recorded,
allows that to be done, on such terms as to costs as it deems fit.
3. Arguing
for the opponents, other than opponents No.8 to 12, learned senior
counsel Mr.J.R.Nanavati and Mr.A.J.Patel vehemently argued that not
only that the present application was grossly delayed, but the order
granting leave to delete respondents No.8 to 12, present opponents
No.8 to 12, was a final order affecting the parties and could not be
recalled. It was pointed out that the applicants herein had chosen to
delete the said opponents, insisted upon their deletion and obtained
a positive order, while the appeal was pending since the year 2000.
Learned counsel relied upon judgment of the Supreme Court in
S.K.Saldi v. General Manager, U.P.State Sugar
Corporation Ltd. [(1997) 9 SCC 661], which does not
appear to be applicable as it is rendered in the context of Order 1
Rules 3 and 9. The other judgment of the Supreme Court in Ch.
Surat Singh (dead) v. Manohar Lal [AIR 1971 SC 240],
had the background of facts wherein son of the plaintiff was brought
on record on death of the plaintiff during pendency of appeal before
the High Court and he was represented by a counsel. However, he was
not impleaded as a party in appeal before the Supreme Court and the
appellants failed to show any good ground for not impleading him.
Therefore, the appeal was held to be liable to be dismissed. The
observations of the Apex Court in the context of such facts clearly
appear to be against the objection raised by the opponents insofar as
absence of opponents No.8 to 12 in the appeal may be pleaded to
non-suit the applicants herein merely on technical grounds and in
spite of the fact that those opponents were originally joined as
opponents in the appeal. It appears from the record that opponents
No.8 to 12 are stated to have assigned their right in the suit land
in favour of the applicants herein and it being the basis of the suit
and the claim of the applicants, they have been joined all throughout
as necessary parties.
4. In
the above facts and circumstances, we deem it proper and in the
interest of justice to allow the application so as to reinstate
opponents No.8 to 12 as opponents in the appeal. The application
stands allowed accordingly with the direction that necessary
amendment shall be carried out in the memo of L.P.A.No.657 of 2000
and fresh NOTICE of the L.P.A. shall be issued and
served upon opponents No.8 to 12 so as to make the appeal ready for
expeditious hearing. There is no order as to costs. It is clarified
that the arguments and contentions of the opponents in the appeal on
the basis of non-appearance of the opponents throughout will not be
affected by the present order.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(
Smt.Abhilasha Kumari, J.)
(KMG
Thilake)
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