VADIBHAI MANILAL PATEL Vs. SHARMISHTABEN PUNJALAL PARIKH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed by the petitioners praying for to issue appropriate writ, order or direction quashing and setting aside the order dtd. 26/6/2019 passed below Exh. 72 in Special Civil Suit No. 206 of 2010 by the learned 2nd Additional Chief Judicial Magistrate, Ahmedabad (Rural), Ahmedabad, wherein, the learned trial Judge was pleased to reject the application under O.1 R.10(1) of the Civil Procedure Code, 1908 ('the CPC') filed by the present petitioners for impleading them as defendants in the said suit.

(2.) Heard, Ms. Megha Jani, learned advocate for the petitioners and Shri Unmesh Shukla, Senior Advocate, learned counsel with Ms. Swati Singhal for the respondent No. 1 and Mr. M. I. Hava learned advocate for the respondent No. 2.

(3.) Learned advocate Ms. Megha Jani for the petitioners submitted that in the present case, the petitioners have already entered into the an agreement to sell with the original plaintiffs - respondent Nos. 1 and 2 herein as back as on 24/12/2007, however, subsequently on 1/5/2008, the plaintiffs executed a sale deed in respect of the very same suit property in favour of the respondent Nos. 3 to 5 - original defendants. However, in view of the earlier agreement to sell in favour of the petitioners, the original defendants proposed terms of agreement with the petitioners for foregoing their right over the said land by paying Rs.91.00 lakh in three instalments. To that effect, an MoU was signed between the petitioners and the original defendants - respondent Nos. 3, 4 and 5 herein on 1/5/2008. The original defendants - respondent Nos. 3, 4 and 5 herein acknowledged and recognized the right of the petitioners over the suit property and that, their purchase vide sale deed dtd. 1/5/2008 would be subject to such right. Thus, although the petitioners are the necessary parties in the suit being Special Civil Suit No. 206 of 2016 filed by the respondent Nos. 1 and 2 - original plaintiffs, the petitioners have not been joined as party. The learned advocate for the petitioners submitted that accordingly, the petitioner preferred an application Exh. 72 under O. 1 R. 10(1) of the Civil Procedure Code, 1908 (CPC) before the trial Court concerned for impleading them in the suit as party, however, by way of impugned order dtd. 26/6/2019, passed by the learned 2nd Additional Chief Judicial Magistrate, Ahmedabad (Rural), the said application came to be rejected, which is illegal, perverse and against the settled legal position.