Karta has right to sell, alienate, or mortgage HUF property even if minor has undivided interest. Consent of all coparceners not mandatory. Coparceners may challenge post-facto if not for legal necessity.
["Karta can alienate without consent of all coparceners","Minor interest does not bar Karta alienation","Section 8 Hindu Minority Act inapplicable when Karta alienates","Post-alienation challenge on ground of no legal necessity","Karta mortgage of HUF property for loans valid"]
[Cites 16 , Cited by 0 ]
Gujarat High Court
Himmatbhai Arjanbhai Savani vs Ghanshyambhai Bachubhai Vadiwala on 10 January, 2024
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C/SCA/14027/2016 ORDER DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14027 of 2016
======================================================
HIMMATBHAI ARJANBHAI SAVANI & 2 other(s)
Versus
GHANSHYAMBHAI BACHUBHAI VADIWALA & 4 other(s)
======================================================
Appearance:
AAYOG Y DOSHI(8519) for the Petitioner(s) No. 1,2
DELETED for the Petitioner(s) No. 3
MR ABHESINH S RANA(6437) for the Petitioner(s) No. 1,2
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR JIGAR M PATEL(3841) for the Respondent(s) No. 3,4,5
MS KJ BRAHMBHATT(202) for the Respondent(s) No. 2
MS VARSHA BRAHMBHATT(3145) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
POOJA H BHARDWAJ(7844) for the Respondent(s) No. 2
======================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 10/01/2024
ORAL ORDER
1. Heard leaned advocate Mr. S. P. Majmudar for the
petitioners, learned Senior Advocate Mr. Dhaval C. Dave with
learned advocate Mr. Jigar M. Patel for respondent Nos.3 to 5
and learned advocate Ms. Pooja H. Bhardwaj for K. J.
Brahmbhatt for respondent No.2.
2. Upon joint request and consent of learned advocates for
respective parties, this matter is taken up for final hearing.
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3. By way of this petition under Article 227 of the
Constitution of India, the present petitioners have prayed for
the following reliefs.
"(A)The Hon'ble Court be Court be pleased to quash
and set aside the impugned order dated 18.06.2016
passed below Exhibit 26 in Special Civil Suit No.447
of 2014 by the 16th Additional Senior Civil Judge,
Surat.
(B) During pendency and final disposal of the present
petition the Hon'ble Court be pleased to stay any
further proceedings in Special Civil Suit No.447 of
2014 before the 16th Additional Senior Civil Judge,
Surat.
(C) ...xxx"
4. Brief facts of the case are as under.
4.1. The petitioners original plaintiffs have filed Special Civil
Suit No.447 of 2014 against the present respondent Nos.1 and
2 for a relief of specific performance of the agreement to sell
dated 14.08.2013 and sauda chitti dated 26.07.2013 and for
other consequential reliefs. The suit property which is bearing
Survey No.34/D of Village Ved having T.P. Scheme No.50,
belongs to the ownership of respondent Nos.1 and 2. The
respondent No.1 is an individual party and respondent No.2 is
HUF. During the pendency of the suit, the respondent Nos.3 to
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5 herein filed an application below Exhibit-26 under Order 1
Rule 10 of the Code of Civil Procedure , 1908 and sought a
relief to be impleaded as defendants in the said suit.
Respondent No.3 is wife of defendant No.2-Nainesh Jayantilal
Vadiwala and respondent Nos.4 and 5 are children of
respondent Nos.2 and 3. The application was contested and the
learned 16th Additional Senior Civil Judge, Surat allowed the
said application and respondent Nos.3 to 5 were directed to be
added as defendants.
4.2. Being aggrieved and dissatisfied with said order, present
petitioners are before this Court.
4.3. The undisputed fact is that the suit property is owned by
the respondent Nos.1 and 2 jointly and out of which the
respondent No.2 is HUF being represented by the Karta
Nainesh Jayantilal Vadiwala. Respondent Nos.3 to 5 are the
members of HUF family and they are co-parceners in the said
HUF. The suit property was proposed to be alienated by an
agreement to sell dated 14.08.2013.
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5. Leaned advocate Mr. S. P. Majmudar for the petitioners
has submitted that the learned trial Judge has committed gross
error of law. Respondent Nos.3 to 5 have no privity of contract
with the petitioners-original plaintiffs and the agreement to sell
was executed by respondent Nos.2 and 3 in capacity of Karta
and Karta has every right to sell or alienate the property
belongs to the HUF. It is submitted that the respondent Nos.3
to 5 are not necessary and proper parties and instead of being
impleaded in the suit, the proposed parties should have filed a
separate suit for their assertion of rights in the suit property. It
is further submitted that in the agreement to sell, the factual
aspect regarding the loan being taken on the suit property is
mentioned and after the property is released from the charge,
title clearance may be obtained. Thus, there was a clear legal
necessity for selling the property. It is further submitted that
while adding the respondent Nos.3 to 5 as defendants in the
suit and looking to the contentions as raised by the respondent
Nos.3 to 5, if the application is allowed, it would amount to
change in the nature of the suit. The original suit is more
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specific performance of the agreement to sell and Sauda
Chitthi, whereas by adding respondent Nos.3 to 5 as
defendants, the suit would be converted into a title suit, which
is not permissible under the law. In view of catena of decisions
relied upon by the learned advocate for the petitioners, it is
further submitted that the petitioners are dominus litius. To
whom plaintiff wishes to sue is the sole discretion of plaintiff,
if plaintiff chooses not to add any party, plaintiff can take that
stand on his own risk. Thus, the submission of learned
advocate for the petitioners is that the order passed below
Exhibit-26 is completely ignoring the provisions of Order 1
Rule 10 of the Code of Civil Procedure , 1908.
5.1 In support of his submissions, learned advocate for the
petitioners has relied upon the decisions, which are as under.
"( 1) Sudhamayee Pattnaik and Others Vs. Bibhu Prasad
Sahoo and others reported in 2022 Live Law (SC) 773.
( 2) Gurmit Singh Bhatia Vs. Kiran Kant Robinson and
Others reported in (2020) 13 SCC 773.
(3) Kammana Sambamurthy (dead) by LRS. Vs.
Kalipatnapu Atchutamma (dead) and Others reported in
(2011) 11 SCC 153.
(4) Bhartiben S. Jhaveri Vs. Controller of Estate Duty
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reported in 1998 SCC Online Guj 486.
( 5) E. Ajay Kumar Vs. Smt. Tulsabai and Another
reported in AIR 1973 Bombay 330.
(6) Raj K. Mehra Vs. Mrs. Anjali Bhaduri reported in
1981 SCC Online Del 105.
( 7) Beereddy Dasaratharami Reddy Vs. V. Manjunath
and Another reported in 2021 SCC Online SC 1236.
( 8) N. S. Balaji Vs. Presiding Officer, Debt Recovery
Tribunal and Others reported in 2023 SCC Online SC
1266.
6. On the other hand, learned Senior Advocate Mr. Dhaval
C. Dave has vehemently submitted that the order passed below
Exhibit-26 does not require any interference as the same is
based on the factual matrix of the case. It is further submitted
that the contentions of the respondent Nos.3 to 5 are
undisputed facts and there was no legal necessity for the Karta
of HUF to alienate the suit property by executing an agreement
to sell and sauda chitthi in favour of the plaintiffs. It is further
submitted that there was no financial crisis, which compelled
the Karta to sell the suit property. It is also submitted that being
co-parceners of HUF, respondent Nos.3 to 5 have a direct
interest in the suit property and they are not only proper, but
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also necessary party in the present suit. It is further submitted
that if any adverse order is passed in the suit, respondent Nos.3
to 5 would be directly prejudiced. To counter the submission
of learned advocate for the petitioners regarding filing of the
separate suit, learned Senior Advocate has submitted that the
respondent Nos.3 to 5 are not challenging the title of defendant
No.2. The fact remains that the challenge will be against the
agreement to sell and sauda chitthi. Hence the nature of
defence would not change. Even, the original defendants have
resisted the suit and in the same way, the respondent Nos.3 to 5
would resist the suit. The learned Senior Advocate has
submitted that even after adding the parties as defendants, the
suit would remain a suit for specific performance. The learned
Senior Advocate for the respondent No.3 to 5 has further
submitted that this Court has no jurisdiction to exercise the
power under Article 227 in the background of the facts
involved in the present petition. Even if, there is any error in
the order of the learned trial Court, the High Court under
Article 227 has no power to reassess or reevaluate the findings.
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7. Learned advocate Ms. Pooja H. Bhardwaj for respondent
No.2 has given support to the submissions advanced by the
learned Senior Advocate. In addition, she has submitted that
according to the observations made by the learned trial Court,
respondent Nos.3 to 5 have a right in the suit property as a
member of HUF. She has further submitted that the scope
under Article 227 of the Constitution is very narrow and this
Court may not interfere in the findings arrived at by the learned
trial Court, which are purely on factual aspects.
8. I have considered the rival submissions of all the parties.
the certain admit facts, which are culled out from the record in
the present petition, are that the suit property is owned by the
respondent No.1 and respondent No.2, respondent No.2 is the
Karta of Nainesh Jayantilal Vadiwala HUF and said HUF has a
half undivided share in the suit property. The respondent Nos.3
to 5 are the members of the said HUF and also the family of
respondent No.2. At this stage, the provisions of under Order 1
Rule 10(2) of the Civil Procedure Code, 1908 referred as
under.
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"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."
9. The said provision clearly envisages that the Court has
power to add any person whose presence before the court is
necessary in order to enable the Court effectively and
completely to adjudicate upon and settle all the question
involved in the suit. It is a discretionary power vested with the
Court to add any party in the suit proceedings. In the present
case, learned trial Court has exercised the discretionary powers
vested in it and has allowed the application. The observations
made by the learned trial Court while granting the application
are purely on the basis of facts and it has been observed that
the proposed defendants are members of HUF and they have
rights and interests in the suit property. Whether the agreement
to sell and the sauda chitthi were executed to over come
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financial constraint and was there a legal necessity, is a
question of fact which can be tried during the trial. At this
stage, such issues cannot be considered while deciding the
application under Order 1 Rule 10 (2) of the Code of Civil
Procedure , 1908. What is required to be considered is whether
the proposed parties have any direct right in the suit property
and in absence of the proposed parties whether the Court would
adjudicate the controversy prevailing in the suit. In the opinion
of this Court, the proposed defendant Nos.3 to 5 are proper and
necessary parties and they are rightly joined in the suit.
10. The decisions relied upon by the learned advocate for the
petitioners are on different set of facts.
(i). In the case of Sudhamayee Pattnaik (supra) the
Hon'ble Apex Court has observed that plaintiffs are the
dominus litis & non-impleading the subsequent purchasers as
defendant on the objection shall be at the risk of plaintiffs.
(ii). In the case of Gurmit Singh Bhatia (supra) the Hon'ble
Apex Court has observed that application to be impleaded of
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subsequent transferee of suit property cannot be allowed
against the wishes of the plaintiffs in a suit for specific
performance of contract.
(iii). In the case of Kammana Sambamurthy (supra) the
vendor having only half of the share in the poverty in question
execution contract for sale of entire property.
(iv). In the case of Bhartiben S. Jhaveri (supra) the issue
was for determination of the principal value of the estate that
prayed to the heirs and also pertaining to estate duty chargeable
on coparcenary properties.
(v). In the case of E. Ajay Kumar (supra) the non-applicant
party contended that the defendant was incompetent to enter
into an agreement of sale in favour of plaintiff. Thus, the case
set up by the non-applicant was oppose to the title which was
set up by defendant.
(vi). In the case of Raj K. Mehra (supra) the case of the
defendant was that the property was built out of the funds of
wife & children have share in the property. And since the
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property is fetching more price, defendant would resile from
the agreement and further disputed about the ownership of
defendant herself. And the defendant moved an application
under Order 1 Rule 10 of CPC to implead her children in the
suit proceedings.
(vii). In the case of Beereddy Dasaratharami Reddy (supra)
the suit for specific performance was decreed suit to the seller
did not challenge the decree, however, son of seller challenged
the decree by way of Regular First Appeal. And the challenge
in the First Appeal was on the ground that agreement to sell is
unenforceable as the suit property belongs to the Joint Hindu
Family.
(viii). In the case of N. S. Balaji (supra) the issue was whether
Karta of HUF can mortgage the property and it was held that
father being Karta can mortgage the HUF property.
In all the above decisions, the question even about a right
of the Karta to either sell or mortgage the HUF property. In the
present case, the respondent Nos.3 to 5 is that there was no
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legal necessity to execute agreement to sell in favour of
plaintiff.
11. In the case of Mumbai International Airport (P) Ltd.
Vs. Regency Convention Centre & Hotels (P) Ltd. reported
in (2010) 7 SCC 417, by referring para Nos.13, 14, 15, 18 and
19, which are as under.
"13. The general rule in regard to impleadment of parties is
that the plaintiff in a suit, being dominus litis, may choose the
persons against whom he wishes to litigate and cannot be
compelled to sue a person against whom he does not seek any
relief. Consequently, a person who is not a party has no right to
be impleaded against the wishes of the plaintiff. But this general
rule is subject to the provisions of Order I Rule 10(2) of Code of
Civil Procedure (`Code' for short), which provides for
impleadment of proper or necessary parties. The said sub-rule is
extracted below:
'10.(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.
14. The said provision makes it clear that a court may, at any
stage of the proceedings (including suits for specific
performance), either upon or even without any application, and
on such terms as may appear to it to be just, direct that any of
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the following persons may be added as a party: (a) any person
who ought to have been joined as plaintiff or defendant, but not
added; or (b) any person whose presence before the court may
be necessary in order to enable the court to effectively and
completely adjudicate upon and settle the question involved in
the suit. In short, the court is given the discretion to add as a
party, any person who is found to be a necessary party or
proper party.
15. A `necessary party' is a person who ought to have been
joined as a party and in whose absence no effective decree could
be passed at all by the Court. If a `necessary party' is not
impleaded, the suit itself is liable to be dismissed. A `proper
party' is a party who, though not a necessary party, is a person
whose presence would enable the court to completely, effectively
and adequately adjudicate upon all matters in disputes in the
suit, though he need not be a person in favour of or against
whom the decree is to be made. If a person is not found to be a
proper or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff. The fact that a
person is likely to secure a right/interest in a suit property, after
the suit is decided against the plaintiff, will not make such
person a necessary party or a proper party to the suit for
specific performance.
18. In Kasturi this Court reiterated the position that necessary
parties and proper parties can alone seek to be impleaded as
parties to a suit for specific performance. This Court held that
necessary parties are those persons in whose absence no decree
can be passed by the court or those persons against whom there
is a right to some relief in respect of the controversy involved in
the proceedings; and that proper parties are those whose
presence before the court would be necessary in order to enable
the court effectually and completely to adjudicate upon and
settle all the questions involved in the suit although no relief in
the suit was claimed against such person
19. Referring to suits for specific performance, this Court held
that the following persons are to be considered as necessary
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parties: (i) the parties to the contract which is sought to be
enforced or their legal representatives; (ii) a transferee of the
property which is the subject matter of the contract. This Court
also explained that a person who has a direct interest in the
subject matter of the suit for specific performance of an
agreement of sale may be impleaded as a proper party, on his
application under Order 1 Rule 10 CPC . This Court concluded
that a purchaser of the suit property subsequent to the suit
agreement would be a necessary party as he would be affected if
he had purchased it with or without notice of the contract, but a
person who claims a title adverse to that of the defendant-
vendor will not be a necessary party."
12. In the case of Mumbai International Airport (supra),
it has been observed that "a 'necessary party' is a person, who
ought to have been joined as a party and in whose absence no
effective decree could be passed at all by the Court" "proper
party is a party who, though not a necessary party, is a person
whose presence would enable the court to completely,
effectively and adequately adjudicate upon all matters in
dispute in the suit, though he need not be a person in favour of
or against whom the decree is to be made."
13. The plaintiff being dominus litis of his suit is not an
absolute principle of rule, the provisions of Order 1 Rule 10 of
the Code of Civil Procedure are exceptions to this rule. The
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governing provisions relating to parties to the suit are
contemplated under Order 1 Rule 10 of the Code of Civil
Procedure , 1908. Whether the applicant is a necessary or
proper party in the suit. Discretionary powers of the Court and
while exercising such discretionary power, the Court has to see
whether a party interested would be directly affected as a result
of culmination of any judgment and decree. In the case of
Baluram Versus P. Chellathangam and others reported in
(2015) 13 SCC 579, the decision of Mumbai International
Airport Private Limited Versus Regency Convention
Centre and Hotels Private Limited and Other reported in
(2010) 7 SCC 417 has been considered.
14. In the case of Krishan Lal and another Vs. Sudesh
Kumari and others reported in AIR 1998 Punjab and
Haryana 168 in para Nos.8, 15, 16 and 23 are reproduced.
"8. The Code of Civil Procedure provides as to how a suit
has to be instituted and how would it end. The Code provides
a thread of continually, which would regulate various stages
of the suit. In other words, the intention of the legislation
must and has to be gathered from the various provisions of
the Code read collectively and in conjunction with each
other. Whereas Order 1, Rules 1 and 3 of the Code provides
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who are the persons who could be joined as plaintiffs and/or
defendants, Rule 10 gives power to the Court to add parties to
direct addition and impleadment of parties and Rule 8-A
gives right to a party to approach the Court for being
impleaded as a party, if the applicant has an interest in any
question which directly and substantially arise in the suit. The
provisions regulating impleadment of necessary and proper
parties, whose presence is necessary before the Court for
proper and final adjudication, must be construed in a wider
perspective, as the provisions of Order 2, Rule 1 of the Code
clearly indicate that every suit, as for as practicable, be
framed so as to afford grounds for final decision upon the
subjects in disputes and to prevent further litigation
concerning them. To hold that avoidance of multiplicity of
litigation in regard to the same subject matter is not even
relevant factor while considering the application for
impleadment, to my mind, would be an approach not in line
with the spirit of the procedural law.
15. The mere fact that a party could bring a suit in its own
right by itself or could not be the sole reason for refusing
impleadment of a party who may otherwise satisfy the
criterion referred supra. Wide discretion is vested in the
Court and so far such an exercise of jurisdiction is not
arbitrary, such an order may not call for interference. A
Division Bench of this Court in the case of Arjan Singh v.
Kartar Singh , AIR 1975 Punj & Har 184, held as under (at
Page 185):--
"Order 1, Rule 10(2) gives wide discretion to the Court to
meet every case of defect of parties, but the power must be
exercised on judicial principles and not arbitrarily. One of
the well-known principles is that the person to be added must
be necessary to effectually and completely adjudicate upon
and settle all the points in the suit and that a party should not
be added merely to avoid multiplicity of suits."
16. The jurisdiction of the Court under this Rule has been
held to be not one of initial jurisdiction of the Court, but one
of judicial discretion, which has to be exercised keeping in
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view the facts and circumstances of a given case. At this
stage, it may be more appropriate to refer to the following
observations of the Hon'ble Apex Court in the case of Ramesh
Hirachand Kundamal v. Municipal Corporation of Greater
Bombay , 1992 (2) SCC 524 : (1992 AIR SCW 846) as under
(at Page 849 of AIR SCW):--
"Though the plaintiff-appellant is dominus litis and is not
bound to sue every possible adverse claimant in the same suit
and he may choose to implead only those persons as
defendants against whom he wishes to proceed, but the Court
may at any stage of the suit direct addition of parties: A party
can be joined as defendant even though the plaintiff does not
think that he has any cause of action against him. The
question of impleadment of a party has to be decided on the
touchstone of Order 1, Rule 10 which provides only a
necessary or a proper party may be added. In the light of the
clear language of the rule, it is not open to the appellant to
contend that a person cannot be added as defendant even in a
case where his presence to enable the Court to decide the
matter effectively. A necessary party is one without whom no
order can be made effectively. A proper party is one in whose
absence an effective order can be made effectively. 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. The
addition of parties is generally not a question of initial
jurisdiction of the Court but of a judicial discretion which has
to be exercised in view of all the facts and circumstances of a
particular case. The Court is empowered to join a person
whose presence is necessary for the prescribed purpose and
cannot under the rule direct the addition of a person whose
presence is not necessary for that purpose. If the intervener
has a cause of action against the plaintiff relating to the
subject-matter of the existing action, the Court has power to
join the intervener so as to give effect to the primary object of
the order which is to avoid multiplicity of actions."
23. All co-owners are necessary party to a suit to recover
properly belonging to them jointly was so held by the
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Supreme Court in the case of Kanakarathanammal v. V. S.
Loganatha Mudaliar , AIR 1965 Supreme Court 271, as under
(at page 276) :--
"It is unfortunate that the appellant's claim has to be rejected
on the ground that she failed to implead her two brothers to
her suit.
xx xx xx xx xx Once it is held that the appellant's two brothers
are co-heirs with her in respect of the properties left intestate
by their mother, the present suit filed by the appellant
partakes of the character of a suit for partition and in such a
suit clearly the appellant alone would not be entitled to claim
any relief against the respondents."
15. In the case of Moreshar Yadaorao Mahajan Versus
Vyankatesh Sitaram Bhedi (D) thr. Lrs. and Others
reported in 2022 SCC Online SC 1307, again case of
Mumbai International Airport Private Limited Versus
Regency Convention Centre and Hotels Private Limited
and Others reported in (2010) 7 SCC 417 has been
considered and in para 20 the Hon'ble Apex Court has
observed.
"It can thus be seen that what has been held by this Court is
that for being a necessary party, the twin test has to be
satisfied. The first one is that there must be a right to some
relief against such party in respect of the controversies
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involved in the proceedings. The second one is that no effective
decree can be passed in the absence of such a party."
16. The next question is the scope of this Court under Article
227 of the Constitution of India. In the Catena of decisions it
has been observed by the Hon'ble Apex Court that in the
exercising the its jurisdiction under Article 227 of the
Constitution of India, the High Court does not act as an
Appellate Court or Tribunal and cannot review or reassess the
evidence upon which the inferior Court has passed the order.
17. In the case of Rajkumar Bhatia Vs. Subhash Chander
Bhatia reported in (2018) 2 SCC 87, in para 12 the Hon'ble
Apex Court has observed hereinbelow.
"This being the position, the case which was sought to be set
up in the proposed amendment was an elaboration of what
was stated in the written statement. The High Court has in the
exercise of its jurisdiction under Article 227 of the
Constitution entered upon the merits of the case which was
sought to be set up by the appellant in the amendment. This is
impermissible. Whether an amendment should be allowed is
not dependent on whether the case which is proposed to be set
up will eventually succeed at the trial. In enquiring into
merits, the High Court transgressed the limitations on its
jurisdiction under Article 227. In Sadhna Lodh v National
Insurance Company , this Court has held that the(2003) 3 SCC
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524 supervisory jurisdiction conferred on the High Court
under Artcile 227 is confined only to see whether an inferior
court or tribunal has proceeded within the parameters of its
jurisdiction. In the exercise of its jurisdiction under Article
227 , the High Court does not act as an appellate court or
tribunal and it is not open to it to review or reassess the
evidence upon which the inferior court or tribunal has passed
an order. The Trial Court had in the considered exercise of its
jurisdiction allowed the amendment of the written statement
under Order 6 Rule 17 of the CPC . There was no reason for
the High Court to interfere under Article 227. Allowing the
amendment would not amount to the withdrawal of an
admission contained in the written statement (as submitted by
the respondent) since the amendment sought to elaborate upon
an existing defence. It would also be necessary to note that it
was on 21.9.2013 that an amendment of the plaint was allowed
by the Trial Court, following which the appellant had filed a
written statement to the amended plaint incorporating its
defence. The amendment would cause no prejudice to the
Plaintiff."
18. In the case of Mohd. Yunus vs. Mohd. Mustaquim and
others reported in (1983) 4 SCC 566, in the case of Subodh
Kumar Gupta and Others Versus Alpana Gupta and
Others reported in (2005) 11 SCC 578, in the case of
Rajkumar Bhatia Versus Subhash Chander Bhatia
reported in (2010) 2 SCC 87 and in the case of Garment
Craft Vs. Prakash Chand Goel reported in (2022) 4 SCC
181, the scope under Article 227 of the Constitution of India
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has been discussed. The observations of the Hon'ble Apex
Court is that the High Court is not to substitute its own decision
on facts and conclusion, for that of inferior Court or Tribunal
power under Article 227 is to be exercised sparingily in
appropriate cases, like when there is no evidence at all to
justify, or finding is so perverse that no reasonable person can
possibly come to such a conclusion that Court or tribunal has
come too.
19. In view of above discussions, the party who seeks to be
impleaded as a defendant must satisfy two tests. (i) there must
be a right to some relief against such party in respect of the
controversies involved in the proceedings (ii) no effective
decree can be passed in the absence of such a party. In the
present case, the respondent Nos.3 to 5 have satisfied two tests.
20. Thus, in the totality of the facts of the case, this Court is
of the view that the learned trial Court has not committed any
error in allowing the application Exhibit-26. There is no
perversity or arbitrariness in the impugned order. Thus, this
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petition lacks merit and the same is dismissed.
21. At this stage, Mr. S. P. Majmudar for the petitioners has
prayed for stay of this order.
The learned Senior Advocate Mr. Dhaval C. Dave
appearing for respective respondents could not deny.
In view of above, the said order is stayed for six months.
(D. M. DESAI,J)
Vikramsinh Amarsinh
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