Allowed

Sushilaben B Shah v. Premaben Buddising Gupta Since Deceased through Legal Heirs

Gujarat HC13 Jun 2018SCA/16786/2004

Case brief

AI extract

What is this about?

The High Court of Gujarat allowed the petitioner to be joined as a plaintiff in a pending Civil Suit challenging possession by former tenants, setting aside the trial court’s order dismissing the substitution application. The Court reserved the question of rent assignment rights for the trial.

What did the court decide?

Imugned order dated 08.07.2004 set aside; Petitioner permitted to be joined as plaintiff in Civil Suit No. 49 of 1999.

Sushilaben B Shah Vs Premaben Buddising Gupta Since… — Property and Title | Gujarat HC (2018)

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C/SCA/16786/2004 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 16786 of 2004

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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SUSHILABEN B SHAH

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Versus

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PREMABEN BUDDISING GUPTA SINCE DECEASED THROUGH LEGAL HEIRS

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Appearance:

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MR SATYEN B RAWAL(1630) for the PETITIONER(s) No. 1 DECEASED LITIGANT(100) for the RESPONDENT(s) No. 1 HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2 MR. ASHOK A PUROHIT(6267) for the RESPONDENT(s) No. 1.1 MR.AMIT R JOSHI(6682) for the RESPONDENT(s) No. 2 RULE SERVED(64) for the RESPONDENT(s) No. 1.2

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 13/06/2018 ORAL JUDGMENT

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1The present petition has been filed by the

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petitioner challenging the order dated 08.07.2004

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passed by the learned Civil Judge, Junior Division,

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Page 1 of 5

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C/SCA/16786/2004 JUDGMENT

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Surendranagar, below Exh.20. By the aforesaid order,
the application of the petitioner for substituting
her in place of the original plaintiff, came to be
dismissed.

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2 The facts are as under:

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2.1 A residential house being block No.6 in area

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No.4 of Shri Vivekanand Society was purchased by the
petitioner from respondent No.1. This was done by a
registered Sale Deed dated 11.06.2003. At the time
when such property was purchased by the petitioner,
the respondent No.2 was already occupying such
property as a tenant. A Civil Suit No. 49 of 1999 was
pending in the Court of Civil Judge, Junior Division,
Surendranagar, which was filed by the erstwhile
owner, Premaben. In the Sale Deed of 11.06.2003, by
which the petitioner became the owner, a specific
averment was made that she would take over with the
property the rights to contest as a plaintiff in the
Civil Suit No.49 of 1999. The Sale Deed, further had
a condition that the petitioner shall make an
application to be joined as a plaintiff in the Civil
Suit.

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Page 2 of 5

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C/SCA/16786/2004 JUDGMENT

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3Mr.Satyen B Rawal, has drawn my attention to

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this averment made in the Sale Deed.

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3.1Having become an owner of the property by virtue
of the Sale Deed, the petitioner made an application
for substitution of her name as plaintiff in place of
the original owner- Premaben. By the impugned order,

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the learned trial judge has rejected the said
application. The learned trial Judge has primarily
rejected the application on the ground that since a
suit for enforcement of contract of specific
performance is pending, in which the tenant has
sought for specific performance of a contract for the
property in question from the original owner, the
application of substitution and the successor owner
cannot be granted. The second ground on which the
trial Judge has rejected the application is that
there was no specific assignment of rights in the
Sale Deed for recovering arrears of rent. On these
two counts, the learned trial Judge has rejected the
aforesaid application. While rejecting such
application, the learned trial Judge has relied upon
a judgment in the case of Shekh Noor & Anr vs.

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Page 3 of 5

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C/SCA/16786/2004 JUDGMENT

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Sheikh G.S.Ibrahim(Dead) by LRS.,reported in

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2004(1)GLR 284. Shri Rawal, learned counsel for the
petitioner has pointed out that in the judgment so
relied upon, it was a case in which the question of
transposition as a plaintiff was not an issue, and
the question of assignment of rights was considered
independently in a suit.

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4Mr. Amit R Joshi, is not in a position to
dispute this proposition. Both the learned counsel
representing the respective parties agree that the
question that, “whether the petitioner could have
been assigned the rights of collecting rent as a
successor owner, be kept open to be decided in the
suit pending before the trial Court?” It is their
suggestion that their application-Exh.20 by which the
petitioner sought substitution as plaintiff be
allowed with a rider that the question of assigning
of right to the plaintiff / present petitioner, who
is the successor owner be kept open for the Court to
be decided at the trial.

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5In view of the aforesaid consensus arrived at by

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Page 4 of 5

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C/SCA/16786/2004 JUDGMENT

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the parties, the order dated 08.07.2004 passed below
Exh.20 by the learned Civil Judge, Senior Division,
Surendranagar, in Civil Suit No. 49 of 1999 is set
aside. The present petitioner is permitted to be
joined as a plaintiff in the aforesaid suit being
Civil Suit No.49 of 1999. However, it will be open
for the trial Court to consider the question whether
the original plaintiff could have assigned the rights
of collecting rent to the successor owner by virtue
of its transfer of property by sale when the suit is
decided finally after taking into consideration the
submissions and contentions of both the parties.

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6It is clarified that, it will be open for the
trial Court while deciding such suit to consider the
question of assigning of such rights to the
petitioner on merits. This Court has passed the
aforesaid order without observing anything on merits.
The petition is allowed with the aforesaid direction.
Rule is made absolute to the aforesaid extent.

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(BIREN VAISHNAV, J)

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Bimal

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Page 5 of 5

Sushilaben B Shah v. Premaben Buddising Gupta Since Deceased through Legal Heirs

Case brief

What is this about?

What did the court decide?

Sushilaben B Shah v. Premaben Buddising Gupta Since Deceased through Legal Heirs

Case brief

What is this about?

What did the court decide?

What the court decided

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