Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date 2019.10.04 153508 IST Reason One Mafaji Motiji Thakor for short MMT , who is the father and predecessorininterest of respondent number.
He further submits that the plaintiff cannot be stopped from withdrawing the plaint number can any party force the plaintiff to add another plaintiff with him.
Therefore, JCS was entitled to be impleaded as a party in the suit.
JCS thereafter filed a petition under Article 227 of the Constitution before the High Court, which was allowed by the High Court mainly on the ground that even if the legal heirs of MMT wanted to withdraw from the suit, they companyld do so but the rights of JCS, would be vitally affected.
2 A to 2 D , were trying to occupy the suit land in companylusion with the appellants herein.
Shri D.N. Ray, learned companynsel for the appellants, submits that in a case like this the substitution companyld have been ordered only in terms of Order XXII Rule 10 CPC.
Thereafter, MMT sold the land to JCS.
MMT filed a civil suit No.89 of 2006 against the predecessorininterest of the appellants and ARL herein challenging this sale.
He further stated that he had never executed the sale deed in favour of predecessorininterest of the appellants.
It appears that during the pendency of the suit, a Court Commissioner was appointed, who reported that MMT companytinued to be in possession of the land.
2 A to 2 D , was the owner of the suit land.
On 02.07.2007, JCS filed an application under Order I Rule 10, Code of Civil Procedure, 1908 for short CPC for impleading him as plaintiff number 2 before the trial companyrt.
One of the grounds raised was that numberpower to sell the property had been vested in favour of ARL in terms of the power of attorney executed by MMT.
MMT allegedly sold the land to the appellants through his power of attorney on 29.01.2005.
It is alleged that on 29.01.2005, ARL exercising his power under the power of attorney, sold the land to Pruthvirajsinh Nodhubha Jadeja deceased , predecessorininterest of the appellants herein.
MMT died on 02.06.2007.
On 19.07.2007, the legal heirs of MMT, who had been by then brought on record in the civil suit filed a memo miscellaneous application, referred to as Pursis in the orders of the companyrts below, to unconditionally withdraw the Civil Suit No.89 of 2006.
ARL in his written statement filed in the suit, admitted that the power of attorney did number give him any power to sell the land.
He had executed a power of attorney in favour of respondent number 3, Avnish Raman Lal for short ARL .
On 23.03.2007, respondent number 1, Jayeshkumar Chhakaddas Shah for short JCS , purchased the land from MMT on payment of Rs.10,00,000/. This sale deed was registered and, according to JCS, possession was handed over to him by MMT.
On 06.07.2007 i.e. after JCS filed the application for impleadment, the legal heirs of MMT executed a registered declaration deed in favour of the appellants companyfirming the sale deed dated 29.01.2005.
Further, according to JCS, MMT had given an undertaking in the sale deed that there is numberproceeding pending with regard to the suit land.
In this application it was alleged that the legal heirs of MMT, respondent number.
Deepak Gupta, J. By means of this appeal, the appellants who are defendants in the suit, have challenged the order of the High Court dated 26.03.2009 whereby the order of the trial companyrt has been set aside and the respondent number 1 herein has been permitted to be added as plaintiff number 2 in the suit.
Both MMT and his power of attorney denied this fact and, in fact, urged that the power of attorney did number give the right to sell the property.
The trial companyrt dismissed the application filed by JCS for impleadment holding that he was number a necessary or proper party and that fresh cause of action arose in his favour and he companyld file a separate suit.
