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Judgment
Gita Gopi, J
Learned advocate Mr. Mahesh Bhavsar for the appellants, who are challenging the order dated 23.02.2021 passed by the learned Additional Senior Civil Judge, Gandhinagar below Exhibit-5 in Special Civil Suit No.149 of 2020, submitted that the order is completely arbitrary, illegal, erroneous and against the settled position of law.
Advocate Mr. Bhavsar submitted that Regular Civil Suit No.154 of 2017 had already been instituted on 13.10.2017 by the original plaintiffs of Special Civil Suit No.149 of 2020 against the original opponent nos.1 to 5 of Special Civil Suit No.149 of 2020, which was for partition of the ancestral property bearing Survey Nos.318, 317, 314, 310, 638 and 616 situated at the outskirt of Village Kudasan, Taluka & District Gandhinagar.
Advocate Mr. Bhavsar submitted that pending the Regular Civil Suit No.154 of 2017, one of the suit property i.e. Survey No.616 was agreed to be sold by executing an agreement of sale by original defendant nos.1 to 5 in favour of original defendant nos.6 to 10, and, thereafter all of them sold the said Survey No.616 through registered sale deed on 21.10.2019 to the present appellants, who are the original opponent nos.11 to 14.
Advocate Mr. Bhavsar submitted that in the meantime, an application dated 14.11.2019, to join the present appellants and others as party respondents, was moved in Regular Civil Suit No.154 of 2017, and an amendment application was also moved to challenge the registered sale deed dated 21.10.2019, which are still pending hearing.
Advocate Mr. Bhavsar, thus, stated that an injunction application dated 14.11.2019 was moved as Exhibit-30, under which status quo order was passed on that day by learned Additional
Page 3 of 8 Civil Judge, Gandhinagar. Mr. Bhavsar submits thereafter below Exhibit-5, on 24.12.2019, the parties were ordered to maintain status quo in respect of suit property. Thus, it is contended by Advocate Mr. Bhavsar that under these circumstances, there would be no cause of action to prefer second suit for the same dispute in Special Civil Suit No.149 of 2020, and, thus stated that it is not maintainable.
Mr. Bhavsar, learned advocate, submitted that the learned Senior Civil Judge ought to have appreciated that the application for joining parties was pending, and under that circumstances, no cause of action to prefer another suit for the same Survey No.616, would arise, and on that ground, submitted that when earlier order of status quo has been passed in Regular Civil Suit No.154 of 2017, such orders cannot be passed in Special Civil Suit No.149 of 2020, which the appellants have impugned herein.
Countering the argument, Senior advocate Mr. Mehul Shah with Advocate Mr. Amrish K.Pandya, submitted that the application for joining the parties, by moving an application under Order 1 Rule (10) of the C.P.C., was filed, and the prayer was made to join the proposed parties as defendant nos.6 to 14, as sale deed had been executed in favour of proposed parties nos.6 to 9, while the agreement to sell was reflecting the names of proposed parties 10 to 14.
7.1 Senior Advocate Mr. Shah submitted that no order was passed below such application, and in the meantime, the order of status quo in Regular Civil Suit was challenged before the District Appellate Court and, therefore, all the record was sent to the District Court, hence, the plaintiffs of Special Suit No. 149 of 2020 had no other recourse, but to file the suit with different cause of action, since sale deed and agreement of sale was executed, where, in the earlier suit an apprehension was raised by the plaintiff of such action by the defendants, and, thus apprehension came true, but since the record proceedings were not available, and when no order was passed below the amendment application, the suit for cancellation of the sale deed and agreement to sell was passed by paying necessary court fees.
7.2 Senior Advocate Mr. Shah submitted that the appellants of the present matter ought to have given the consent in the amendment application and should have permitted themselves to be joined as parties, then the plaintiffs of Special Civil Suit No.149 of 2020, would not have suffered such process; however, Mr. Shah submitted that subsequent suit is with different cause of action.
Here, the order, which has been impugned, the direction is for maintaining the status quo till final disposal of the suit. As has been submitted by senior Advocate Mr. Shah that the evidence of the plaintiffs have been recorded in Special Civil Suit No.149 of 2020, therefore in such progress of matter let the trial Court decide, whether both the suits are required to be consolidated or not.
A joint request has been made by both the advocates that both the suits be directed to be expedited. In view of the same, let the trial Court Judge considers the request and proceed for recording of the evidence of the parties as expeditiously as possible, and in case, if, parties moves application for consolidating the suits, the same may be decided in accordance with law.
In view of the above, the present Appeal From order is disposed of. Connected Civil Applications also stand disposed of accordingly.