KHODAJI SHIVAJI THAKOR Vs. GIRISHBHAI RANCHODBHAI PATEL

JUDGEMENT

(1.) The present petition is filed by being aggrieved and dissatisfied with the order dtd. 11/5/2022, passed by th the 9 Addl. Civil Judge, Mirzapur, Ahmedabad (Rural) in Regular Civil Suit No.300 of 2005 below Exh.70 and 143, whereby the trial Court has allowed the third party application filed by Sakariben Khodaji Shivaji Thakor - respondent No.6 herein for joining as plaintiff in the abovementioned suit.

(2.) Brief facts of the case are as such that the present petitioner had filed a Regular Civil Suit No.300 of 2005 for permanent injunction and declaration of the property situated at Village: Vejalpur, bearing Revenue Survey No. 988 (New Survey No.315 - on renumbering when transferred the said property to Jodhpur Gam, Ahmedabad) admeasuring 5 acre 36 gutha. It is the case of the petitioner that the present petitioner is having the possession of the land. Moreover, the petitioner had prayed that the respondents are not having any legal right in the above mentioned property and in that regard revenue entry being Nos.418, 2698 and 8216 are also required to be cancelled as they were wrongly mutated.

(3.) Learned advocate Mr. Tejas P. Satta appearing for the petitioner has argued that the trial Court has grossly erred by misreading the provisions of Order XXIII of the Civil Procedure Code, 1908, (for short, "the Code"). He has further submitted that the learned trial Court has not considered the aspect that the though the application is field at Exh.92 where the present petitioner has not himself signed the pursis but it is singed by power of attorney holder of the present petitioner and he has further submitted that the said power of attorney has never produced on the record of the suit proceedings. He has further submitted that in view of the provisions of Order XXIII of the Code, if the Court is not passing any order for such application for withdrawal, the plaintiff can pursue the proceeding and the suit cannot be considered as withdrawn.