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TMI Blog2009 (3) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... norable Court may be pleased to stay the further proceedings/hearing of Special Civil Suit No. 89 of 2006, pending before the learned 8th Additional Senior Civil Judge, Gandhinagar. 2. The facts leading to the petition, in brief, are as under: 2.1. The deceased father of the respondent No. 1 herein named Mafaji Motiji Thakore filed Special Civil Suit No. 89 of 2006 in the Court of the learned Senior Civil Judge, Gandhinagar against the respondent No. 2 herein as well as deceased father of respondent No. 3, namely Pruthvirajsinh Nodhubha Jadeja, wherein the relief was prayed for to declare the sale-deed dated 29-1-2005 executed by respondent No. 2 herein (original defendant No. 1) in favour of respondent No. 3 herein (original defendant No. 2) as illegal and void ab-initio and further prayed for the relief that the said document be cancelled. In the said suit, the original plaintiff (respondent No. 1 herein) filed an application for temporary injunction restraining the respondent Nos. 2 and 3 herein from transferring, selling and parting with the aforesaid suit property bearing Block No. 868, the property for which the sale-deed sought to be cancelled, was executed. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawal pursis in the sense that if the original plaintiff is not interested to proceed further with the suit, he may not be compelled by the Civil Court to proceed with the suit and the Civil Court should permit him to get himself detached from the suit and the present petitioner who intends to be joined in the suit as plaintiff No. 2, shall proceed further with the suit because he is not only interested in the cause of action pleaded in the suit, but even in the relief prayed for by the original plaintiff in the suit. Therefore, it is submitted that the petition be allowed and the impugned order passed by the Civil Court be set aside and the petitioner be permitted to be joined in the suit as plaintiff No. 2. 4. Learned Advocate Ms. Trusha K. Patel for the respondent No. 1 (the original plaintiff) vehemently opposed this petition and submitted that the petitioner cannot be said to be bona fide purchaser of the suit land for value without notice. The suit was pending and during the pendency of the suit, he allegedly purchased the suit land. It is further submitted that to have unconditional withdrawal of the suit is a statutory right of the plaintiff. It is further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as one of the plaintiffs. Even his relief to be joined as one of the plaintiffs is outright time-barred. Therefore, it is submitted that in any respect the petitioner cannot be permitted to be joined as one of the plaintiffs in the suit. The petition, therefore, deserves to be dismissed. 6. I have perused the impugned order passed by the trial Court and the relevant papers produced by both the sides in this petition. There is no dispute that the father of the respondent No. 1 named Mafaji filed Special Civil Suit No. 89 of 2006 against the respondent No. 2 herein and the father of the respondent No. 3 herein. In the said suit, in Para 7 regarding the cause of action, it is stated that the original plaintiff has not authorized the original defendant No. 1 by way of Power of Attorney to alienate any property. That despite this, the original defendant No. 1 entered into an agreement of sale with original defendant No. 2. That therefore, said transaction is illegal and void. In Para 8A of the plaint, consequential relief was prayed to declare said sale-deed dated 29-1-2005 as illegal and void ab-initio and for cancellation of the sale transaction. It further transpires that the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant No. 2 can be said to be a bona fide purchaser for value without notice or whether the petitioner can be said to be a bona fide purchaser for value without notice is a question of evidence. Therefore, in this petition that question cannot be dealt with. 7.1. Thus, considering the above discussion, at this stage, it can safely be said that the third party petitioner can never be termed as a stranger, but he is interested in the Us. 8. So far as the question of unconditional withdrawal of the suit is concerned, needless to say that an unwilling litigant cannot be compelled to continue with the litigation. Under such circumstances, if the original plaintiff (the respondent No. 1 herein) desires to withdraw the suit unconditionally, he cannot be restrained. However, the situation will arise that only he himself can be detached from the litigation. It would amount to withdrawal from the suit. The petitioner is interested in the litigation and if the petitioner is permitted to be joined as the plaintiff No. 2 in the suit, he can proceed further with the suit. 9. Learned Sr. Advocate Mr. Patel relied upon a decision rendered in the case of Amit Kumar Shaw v. Farida Khato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion deserves to be allowed. 11. However, on behalf of the respondents reliance was placed on the judgment rendered in the case of Patel Dineshbhai Mohanbhai v. Legal Heirs of Naranbhai Ramdas reported in 2005 (1) GLR 116 : 2005 (1) GLH 505. Considering the facts of said case, it clearly transpires that third party had already filed a separate suit and simultaneously filed an application in one pending suit to implead him as party to said suit. The request was made to be impleaded as party in the suit after about more than 10 years. There was no common cause or common interest in the litigation found by the Court so far as the third party was concerned. Therefore, it was observed that no prejudice would be caused to the third party if his request to be impleaded as party would be turned down. The said suit in which the third party requested to be joined as a party was a suit for specific performance of contract. Thus, the facts of our case are totally different. In the instant case, the suit is not for specific performance of a contract, but the suit is for cancellation of sale-deed. Needless to say that even the petitioner can be said to be interested not only in the cause of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a suit in gross violation of Section 52 of the T.P. Act has no enforceable legal right. The purchaser lis pendens is bound by the decree passed against his vendor and he cannot as of right be impleaded in the suit. 11.4. As stated above, the identical issue in the decision rendered in case of Amit Kumar Shaw's case (supra) was decided by Hon'ble the Apex Court and in Paras 15 and 16 of said judgment, considering Order 22, Rule 10 of the C.P.C. together with Section 52 of the T.P. Act, Hon'ble the Apex Court by allowing said appeal observed that the presence of the appellants was absolutely necessary since the appellants were the only persons who have got subsisting right, title and interest in the suit. Therefore, they were permitted to be impleaded in a pending suit. Moreover, the facts of Pannala Renuka's case (supra) decided by Andhra Pradesh High Court are totally different than the instant case on hand. It may be noted that in the instant case on hand, the alleged first transfer made by original defendant No. 1 in favour of original defendant No. 2 itself is the subject-matter of suit and the first sale-deed itself is under challenge and it is the specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be noted that there is a difference between withdrawal of suit and withdrawal from suit. In the instant case, if the original plaintiff desires to get himself withdrawn from the suit, the petitioner, who is equally interested in the cause of action as well as in the ultimate relief prayed for by the original plaintiff in the suit, can proceed further with the litigation. As a matter of fact, considering the nature of the suit and the relief prayed for by the original plaintiff and the facts and circumstances of the case, it cannot be said that the interest of the original plaintiff and the petitioner are conflicting in nature. On behalf of the respondents, it is submitted that the heirs of Mafaji, the respondent No. 1 has ratified the sale-deed dated 29-1-2005 executed by respondent No. 2 in favour of respondent No. 3. That the ratification was done on 6-7-2007. It is also submitted that the claim of the petitioner has become time-barred and question of limitation shall arise. Now, in this respect, whether the ratification amounts to fresh sale or not is a question to be decided only after full-fledged evidence. Even the factum of ratification itself cannot be conclusively decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehended amendments in plaint, etc., shall not come in his way and all such technicalities shall pale into insignificance. Civil Courts have ample powers within the four corners of law to meet with such problems. If need be and if so required, Court-fees can be recovered from the plaintiff No. 2 after his impleadment in the suit. Furthermore, considering the facts and circumstances of the case and the case of the petitioner and considering the foregoing discussion, the petitioner is equally interested in the cause of action of the suit pleaded in the plaint and the final relief prayed for in the suit, and therefore, no material amendments would be required as apprehended by the respondents. However, if the requirements laid down under Order 6, Rule 17 of the C.P.C. are satisfied by any party seeking amendment in pleadings, Civil Court shall exercise its powers in favour of such amendments. 13.1. Therefore, in sum and substance, if a claim of a third party of joining him as a party to a civil suit is supported by the provisions contained under Order 1, Rule 10 and under Order 22, Rule 10 of the C.P.C., yet solely giving weightage to such technicalities, if his request is turned do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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