PRAVINCHANDRA BALUBHAI Vs. ROHITKUMAR NIRANJANBHAI SIDDHPURIYA

JUDGEMENT

(1.) This petition is filed by the petitioner - original plaintiff under Articles 226 & 227 of the Constitution of India, challenging the order passed below Exhibit -317 preferred by one Kanubhai Ambalal Deesavala, requesting to join him as party defendant and named other persons i.e. heirs of one Champakbhai Dhanjibhai Solanki, if thought fit it to issue notice by the Court, which came to be allowed by the 08th Additional Sr. Civil Judge & Additional Chief Judicial Magistrate, Surat, vide order dtd. 19/7/2022 in Regular Civil Suit No.563 of 2014.

(2.) Mr. Arpit Kapadia, learned advocate for the petitioner submitted that earlier the very proposed party, who wanted to be joined in suit filed by the petitioner - plaintiff, had filed one suit and it came to be ultimately dismissed for default and that order was also confirmed. He has further submitted that for so-called agreement to sell of the year 1994, the proposed third party, who wanted to be joined as party defendant in the suit filed by the petitioner - original plaintiff, has already filed a suit, joining the present petitioner - plaintiff as defendant, which is now stayed by this Court in a proceedings being Civil Revision Application No.5 of 2019. He has further submitted that person claiming his right based on an agreement to sell of the year 1994, woken-up from slumber after a long time and therefore, he should not have been joined as party defendant in the suit filed by the present petitioner - plaintiff. He has further submitted that third party has not prayed for being joined as party defendant but only persons, named in para-3, being heirs of Champakbhai Dhanjibhai Solanki, requested to be joined as party defendant in the suit preferred by the petitioner - plaintiff and therefore, when those persons named therein have not preferred any application for being joined, the learned Judge could not have allowed them to be joined as party defendants and therefore, the impugned order passed by the learned Judge is erroneous, illegal and requires to be interfered with, as they are neither necessary nor proper party to the suit filed by him.

(3.) Having heard the learned advocate for the petitioner and going through the impugned order as also documents annexed with the petition, it is clear that the suit, wherein third party - Kanubhai Ambalal Deesawala, who wanted to be joined as party defendant, is filed by the present petitioner in respect of the properties for which, third party claims to have an agreement to sell executed on 3/5/1994 by the father of the present plaintiff and therefore, the present suit, which also includes the lands where third party has a right in the part of the lands referred into the said suit and thereby, he is not only the necessary but a proper party to be joined in the suit.