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Judgment
A.J. Shastri, J
[1] The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of an
order dated 05.03.2018 passed below Exh.34 in Regular Civil Suit No.8 of 2013.
[2] The facts out of which the present petition has arisen are that the petitioner - original plaintiff had approached the learned Principal Civil Court by
way of filing Regular Civil Suit No. 8 of 2013 seeking declaration and permanent injunction in the property, bearing Revenue Survey No.287, Plot
No.11, admeasuring 4099 square fit, 380-85-71. The respondent â€" defendant, pursuant to the summons having been issued, submitted a written
statement with documents. It is the case of the respondent that he had also purchased the very same property from the same party through a
registered sale document. Since there is a dispute between the parties with respect to very same property once purchased by original plaintiff by way
of Registered Sale Deed No.620 from late Kumbhar Ruda Ratna on 03.12.1977, whereas the very same property is said to have been purchased by
the original defendant on 01.02.1974 by way of registered sale document from very same party i.e. late Kumbhar Ruda Ratna. As a result of this, an
application was submitted by the petitioner - plaintiff for joining legal heirs of late Kumbhar Ruda Ratna, as defendant Nos.2/1 to 2/4 in Regular Civil
Suit No.8 of 2013 for effective adjudication. The original defendant, according to the petitioner, had not even bothered to submit reply, but
unfortunately, learned Judge without considering the proposition on proper and necessary party, passed an order on 05.03.2018, whereby the
application came to be dismissed. As a result of this, the present petitioner is constrained to approach this Court by way of present petition.
[3] The Court issued notice on 07.08.2018, and thereafter, contesting respondent has been represented by learned advocate Mr.Premal S.Rachh. The
hearing took place in the present petition, wherein, a request was made that since this being a small issue pertaining to joining party application, the
petition may be disposed of at the admission stage finally. As a result of this, learned advocates appearing for the respective parties have been heard
by this Court.
[4] Learned advocate Mr.Rajesh K.Savjani appearing on behalf of the petitioner has vehemently contended that while passing the impugned order
learned Judge has completely over looked the basic concept of necessary and proper party to the proceedings and has also lost sight of the principle of
dominus litis and hence, the order passed by the Court below is not only unjust and arbitrary, but it is contrary to the very object of Order 1 Rule 10 of
the C.P.C.. It has further been contended that the claim of both respondent as well as defendant is entangled with respect to very same property and
as such, since the respondent is also trying to claim interest out of his transaction, he is a necessary and proper party and the Court would be aptly
assisted, if the proposed parties be allowed to be joined in the present proceedings. It has been submitted that on the contrary, with a view to give
effective outcome to the suit proceedings, either way presence of proposed respondent is very necessary. Accordingly, the Court ought to have
considered the request and granted application, even to do the complete justice between the parties. The request ought to have been considered and
the reasons which have been assigned by the Court below are also not sufficient enough to justify the ultimate conclusion. As a result of this, error
which has been committed deserves to be corrected.
[4.1] With a view to substantiate his submissions, learned advocate Mr. Savjani has made reference to the following decisions of the Apex Court, and
thereby, has requested this Court that rejection of Exh.34 is nothing but in regular exercise of jurisdiction as a result of this, the relief prayed for
deserves to be granted.
(i) In the case of Mumbai International Airport Private Limited versus Regency Convention Centre and Hotels Private Limited and Others reported in
(2010) 7 SCC 417.
(ii) In the case of Kishorilal (Dead) through LRs & Others versus Gopal and Others passed by the High Court of Madhya Pradesh in First Appeal
No.213 of 2000 on 12.09.2017.
(iii) In the case of Kanaklata Das and Others versus Naba Kumar Das and Others reported in (2018) 2 SCC 352.
(iv) In the case of M.P.Venkatachalam versus Govindan passed by the High Court of Madrash in C.R.P.(PD) No.344 of 2006 and C.M.P.No.5789 of
2006 on 18.06.2010.
[5] Learned advocate Mr.Premal S.Rachh appearing for the contesting respondent has submitted that discretion which has been exercised by the
Court below is just and proper. There is hardly any reason to call for any interference precisely in view of the fact that the case is not made out by the
petitioner. That, presence of proposed respondent is necessary. On the contrary, the suit has been filed way back in the year 2013 and a declaration is
sought against the respondent i.e. Vitthalbhai Devsibhai Kapuriya and his legal heirs. Since the relief is not asked against the proposed respondent,
there is no reason for dragging the legal heirs of late Kumbhar Ruda Ratna as defendant No. 2/1 to 2/4. From the reply, which has been filed in the
suit proceedings also, it does not transpires that legal heirs of late Kumbhar Ruda Ratna deserve to be aided simply because deceased Kumbhar Ruda
Ratna appears to have executed some transaction on 03.12.1977, the same ipso facto would not give rise to the petitioner to drag any of the legal heirs
in the proceedings.
[5.1] Learned advocate Mr.Rachh has further submitted that the plaintiff has to stand on his own to prove and establish his case, and therefore, since
that be the principle, presence of the defendant is not necessary. It has further been submitted that even apart from that the transaction in question is a
registered transaction and the necessity of joining proposed defendant is no longer required. It has been submitted that in a suit of 2013, an application
is submitted in the year 2016 for joining party, the reason for such which is reflecting is contained in paragraph 2 wherein with a view to inquire as to
land is sold to whom, a request is made to join the proposed defendant, but fact is undisputedly clear that both the transactions are registered
transactions for the purpose of making this inquire, the legal heirs are not be dragged in litigation for all the time to come, and therefore also, presence
of proposed defendants is no longer required in the present suit proceedings.
[6] Having heard learned advocates appearing for the parties and having gone through the material on record placed before this Court what has been
prayed for is to join legal heirs of deceased Kumbhar Ruda Ratna and the reason which has been submitted is that this original owner i.e. late
Kumbhar Ruda Ratna sold the land way back on 01.02.1974 through registered sale transaction to the defendant of present suit proceedings and only
with a view to ascertain as to whom that land is sold, for that presence is required. The application appears to be very brief and it does not contain any
averments as to under which circumstance, presence is expedient and further, the transaction appears to be registered transaction even as per the
case of the petitioner and the reason to inquire about the names is no good reason to drag on the legal heirs in the present proceedings. Additionally,
the relief which has sought is also essentially against the defendant herein for the purpose of restraining the respondent from interfering with
possession of the plaintiff i.e. the petitioner. Now, this suit which is of February 2013 is tried to be complicated by requesting to join legal heirs of
deceased Kumbhar Ruda Ratna by submitting application in the month of June 2016 and to surprize till March 2018, the application is not precipitated
any further. It further appears that this rejection is of March 2018 and the order is tried to be challenged by the petitioner on the ground that they are
necessary and proper party to the proceedings, but then except the fact that they are legal heirs of deceased Kumbhar Ruda Ratna, there is no other
reason nor any pleadings as to why they are necessary and proper parties. In fact, to drag the party to the litigation requires some pleadings and in
absence thereof, just in a routine manner, a person cannot be dragged into a litigation. No doubt the plaintiff has a dominus litis in his favour but that
principle will not be utilized for the purpose of bringing on record the parties whose presence may not be required that much. On the contrary, no
particulars are provided as to when deceased Kumbhar Ruda Ratna died, no pleadings are also visible as to for what circumstance, the proposed
defendant can be said to be necessary and proper parties. Simply because the proposed defendant are legal heirs of deceased Kumbhar Ruda Ratna
against whom there is no grievance of present petitioner, there is hardly any reason to join proposed defendant as party to the proceedings. Because
essentially, if the stand of the petitioner itself is to be looked into, both plaintiff as well as respondent are claiming to have entered into transaction with
deceased Kumbhar Ruda Ratna. Now, during life time of deceased Kumbhar Ruda Ratna either side has not raised any grievance and now without
any details, an application is submitted just with a view to drag the legal heirs on record. Hence, overall reading of the material would make it clear
that no pleadings are made by the petitioner as to how and in what manner, the proposed defendant would be a necessary and proper party to the
proceedings.
[6.1] Further, no details have been provided as to when deceased Kumbhar Ruda Ratna died and further nothing comes out as to why, if the plaintiff
has purchased the property in 77 came forward to bring the suit in the year 2013. In absence of such kind of pleadings, it is not permissible for the
petitioner to drag on any of the parties to the proceedings. There must reflect a justification for their presence required, which is completely missing
from the bare reading of application. It further appears that no relief is sought against the legal heirs in any form. On the contrary, what has been
claimed is from respondent herein, who is said to have purchased the property through registered sale transaction in February 1974. Even from the
assertion of plaint itself, there is no remote circumstance reflecting, whereby, presence of proposed defendant becomes necessary, and therefore, in
absence of any such particulars, discretion which has been exercised by the Court below cannot be said to be perverse or irregular in any form. From
the stand taken by original defendant in-reply, it appears that way back in the year 1974, through registered sale deed, father of the defendant
Vitthalbhai Devsibhai Kapuriya and Narsibhai Bhurabhai Patel were holding possession and title of the land in question, and as against this, a total
denial of transaction of plaintiff appears to have been asserted in the defendant. So, here is a case in which irrespective of presence of proposed
defendant, it is obligatory on the part of plaintiff to prima facie stand on their own to establish the legal rights. The reply of the suit came to be filed
way back in March 2013, copy whereof was undisputedly supplied and though the stand was absolutely clear after almost a period of three years, this
application is submitted and this delay is also being silent. The stand taken by the petitioner appears to be not so confidence nor it generates any
satisfaction. As a result of this, when the learned trial Judge has exercised discretion by holding specifically that there is no cause shown by the
petitioner in any manner as to way presence is necessary, the application appears to have rightly been rejected and the discretion which has been
exercised, which is vested in law, has also rightly been exercised. Accordingly, no case appears to have been made out.
[6.2] Now in the light of aforesaid circumstances, which are prevailing on record, in the context of same, if the judgments which are tired to be relied
upon are to be looked into, there appears to be no dispute about proposition that whenever the Court find that presence of a party is necessary and
proper, discretion deserves to be exercised for joining the same to make effective adjudication. But, at the same time, mere expectation or likelihood to
assert any particulars, which may become necessary is no ground to drag on the person in litigation four years' delay and no litigant can be compelled
to be joined in the proceedings. No doubt, ample power is there with the Court which is not in dispute, but the said discretion has to be exercised on
the basis of sound principles and with supported material, whereas, here in the instant case, no material appears to have been laid before the Court to
justify request of dragging legal heirs of deceased Kumbhar Ruda Ratna in the proceedings. The petitioners are silent on the issue as to why at a such
belated stage, the proposed defendant to be joined in the proceedings and further the relief which has been claimed in the suit is also with respect to
restraining the legal heirs of Vitthalbhai Devsibhai Kapuriya from interfering with possession of the property. So, this relief which has been sought in
the main proceedings is also not directly affecting the proposed defendants nor it is the case of plaintiff that proposed defendants are in any form
creating any act by virtue of which, there presence is necessary. Resultantly, the judgments which have been cited by learned advocate are not
directly applicable to the facts of the present case, and therefore, without coming in confrontation or deviating from such proposition of law laid down
by series of decisions in the peculiar background of present facts, this Court is of the opinion that petitioner has miserably failed to make out any case
against the proposed defendant to be joined in the proceedings and in absence of any specific pleadings and the relief, there is hardly any case which
warrants any interference, especially when the Court has applied its mind and passed an order after assigning proper reasons.
[6.3] It further appears that the pleadings are completely missing as to how in absence of proposed defendants, no effective decree could be passed at
all by the Court, and therefore, in absence of any pleadings of the petitioner, no party can be joined in the proceedings. On the contrary, it is a settled
position of law that if a person is not found to be proper and necessary party, the Court has no jurisdiction to implead him against the wish of the
plaintiff and the fact that a person is likely to secure a right or interest after the suit is decided against the plaintiff will not make such person, a
necessary or proper party to the suit for specific performance, and therefore, a bare reading of assertions of the plaint and the proposition of law
which has been laid down by the Court in a decision in the case of Mumbai International Airport
Private Limited versus Regency Convention Centre and Hotels Private Limited and Others reported in (2010) 7 SCC 417, this Court is of the opinion
that no case is made out to join the proposed defendants in Regular Civil Suit No.8 of 2013. The relevant observations with regard to this contained in
paragraph No.15 are reproduced hereinafter:
“15. A “necessary party†is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at
all by the court. If a “necessary party†is not impleaded, the suit itself is liable to be dismissed. A “proper party†is a party who, though not a
necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in
the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary
party, the court has no jurisdiction to implead him against the Wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit
property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific
performance.â€
[6.4] Yet, one further decision is also not possible to be unnoticed by this Court is that if no relief is sought against the person, a person cannot be
joined in the proceedings. On the contrary, principles of dominus litis, if are to be looked into, no case is made out by the plaintiff - petitioner on the
basis of either averments contained in the plaint or the application which has been submitted. Hence, no case is made out and having given consensus
facts and going through the details about the judgments which have been cited, the satisfaction which has been arrived at by the Court below cannot
be said to be perverse or irregular in any form. As a result of this, even after giving anxious consideration to the decisions which have been cited and
referred to above, the petitioner has miserably failed to make out any case for joining proposed defendants and there appears to be no irregularity
committed by the Court below, while exercising discretion.
[6.5] Accordingly, this being a petition under Articles 226 and 227 of the Constitution of India and keeping in view the proposition of law on such
exercise, this Court is of the opinion that no case is made. The relevant observations contained in few of the decisions, which are delivered by the
Apex Court, some of the observations since have been considered by the Court, the Court deems it proper to reproduce the same hereinafter:
(i) In the case Mohd. Yunus versus Mohd. Mustaquim and others reported in AIR 1984 SC 38, the relevant abstract contained in paragraph No.7 is
reproduced hereinafter:
“7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited ""to seeing that an inferior Court or
Tribunal functions within the limits of its authority"", and not to correct an error apparent on the face of the record, much less an error of law. In this
case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned
Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in
consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate
Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to
correct errors of law in the decision.â€
(ii) In the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in (2013) 9 SCC 374, the relevant abstract contained in paragraph
No.6 and 7 are reproduced hereinafter:
“6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge
ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court
under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After
considering various facets of the issue,the two Judge Bench culled out the following principles:
(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC
Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have
acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the
limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there
is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction.
When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned
thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following
requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated
argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one
view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and
circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or
proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in
an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the
smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or
where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between
the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of
the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give
suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in
appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts
and circumstances of the case.
The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was
held:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court
under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is
substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed
above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders
of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to
it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by
the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this
regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in
Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and courts subordinate to it, ""within the bounds of their authority"".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to
exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent
perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic
principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than
the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure
of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional
amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered
that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to
keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of
justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that
the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the
functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed
for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.
[6.6] In the aforesaid circumstances and in view of the position which has been prevailing on the basis of pleadings as on the date available on record,
precisely from the contents of the plaint as well as from application Exh.34, no justification appears to have been made out by the petitioner to call for
any interference. Accordingly, the petition being devoid of merits, the same is dismissed hereby, at this stage, precisely for want of proper pleadings
with no order as to costs. Notice is discharged.