LAWS(GJH)-2009-6-30

ASLAM AZAM BOMBAYWALA Vs. AAISHABIBI USMANMIYA MALEK

Decided On June 19, 2009
ASLAM AZAM BOMBAYWALA Appellant
V/S
AAISHABIBI USMANMIYA MALEK Respondents

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, the petitioner-third party subsequent purchaser original applicant has prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 22. 10. 2008 passed by the learned 4th Additional Senior Civil Judge, Surat passed below Exh. 14 in Special Civil Suit No. 178 of 1988 (new No. 523 of 2008), by which the learned trial Court has dismissed the said application submitted by the petitioner-third party subsequent purchaser permitting him to be joined as party defendant to the proceedings of the aforesaid suit.

(2.) THAT respondent No. 1 herein original plaintiff has instituted Special Civil Suit No. 178 of 1988 (new No. 523 of 2008) for re-conveying/ getting back title deed of the suit property. It appears that the respondent Nos. 2 and 3 original defendants have purchased the property in question from the respondent No. 1 herein original plaintiff vide registered sale deed. It is the case on behalf of the respondent Nos. 2 and 3 herein before the learned trial Court that though the registered sale deed was executed in their favour possession was to be handed over to them within four months as the respondent No. 1 was not having any alternative arrangement /accommodation. It is the case on behalf of the respondent Nos. 2 and 3 that as the respondent No. 1 original plaintiff refused to hand over the possession inspite of registered sale deed, they preferred Special Civil Suit No. 272 of 2008 (new No. RCS 174 of 2008) against the respondent No. 1 herein for getting the possession of the said property. The said suit is pending. It appears that thereafter the respondent No. 1 herein original plaintiff has instituted Special Civil Suit No. 178 of 1988 (new No. 523 of 2008) for the aforesaid relief. It is the case on behalf of the petitioner that even in the suit of 1988 process of Special Civil Suit No. 178 of 1988 could not be issued / served upon the original defendant i. e. respondent Nos. 2 and 3 till 2008,as the respondent No. 1 original plaintiff failed to furnish correct address of respondent Nos. 2 and 3 and thus the suit of 1988 could not be proceeded further. That in the meanwhile respondent Nos. 2 and 3 herein original defendant have sold the said property to the present petitioner by registered sale deed dated 1. 5. 2002 and in the aforesaid sale deed the respondent Nos. 2 and 3 have disclosed the filing of the Special Civil Suit No. 272 of 1986. It is also the case on behalf of the petitioner that so far as the Special Civil Suit No. 272 of 1986 is filed by the respondent Nos. 2 and 3 original defendants from whom the petitioner has purchased the suit property is concerned, petitioner has already applied and got himself joined as party plaintiff in the said suit, being legal and original owner of the said property. It is the case on behalf of the petitioner that as soon as petitioner came to know about pendency of the Special Civil Suit No. 178 of 1988 (new No. 523 of 2008) against the original defendants i. e. respondent Nos. 2 and 3 from whom the petitioner has purchased the property in question, he submitted the application Exh. 14 for permitting him to be impleaded as party defendant in the said suit to protect his interest as subsequent purchaser and the said application has been dismissed by the learned trial Court by impugned order. Hence, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

(3.) WHEN the present petition came up for hearing before the learned Single Judge for admission hearing, the learned Single Judge passed the following order on 12. 2. 2009.