(1.) THE brief facts giving rise to the present petition under Articles 226 and 227 of the Constitution of India are as under :
(2.) IT is urged by the learned Senior Counsel Shri P.C. Kavina appearing with the learned counsel Shri Arpit Kapadia for the petitioner that the original defendant No.1 is a proprietor of Sai Developers and his constituted power of attorney has filed Special Civil Suit No.186 of 2010 in the Court of the learned Principal Senior Civil Judge, Rajkot, against the present petitioner for cancellation of the agreement dated August 02, 2010. The interim injunction application below Exhibit 5 preferred in the suit was rejected by the learned 4th Additional Senior Civil Judge, Rajkot, vide its order dated January 06, 2011. The Court prima facie came to the conclusion that the agreement dated August 02, 2010 is real and genuine and the original defendant had accepted a sum of Rs.9 crore and thus, the defendant No.1 assigned the rights in respect of the property in question in favour of the petitioner, however, subsequently Special Civil Suit No.186 of 2010 was filed by taking a somersault for cancellation of such agreement dated August 02, 2010. The said property being the subject matter of Special Civil Suit being 53 of 2002, present petitioner has claimed to be a necessary party. It is further urged that the trial Court failed to appreciate that the original defendant No.1 executed the document in favour of the petitioner and assigned the rights in favour of the petitioner. However, after such assignment of the rights, the original defendant No.1 turned hostile to the extent of filing a suit for cancellation of the agreement dated August 02, 2010 and, therefore, it is utmost necessary, according to the learned counsel for the petitioner, to protect the interest of the petitioner in the property in question and his presence would not only be necessary but inevitable to decide the suit.
(3.) ON thus hearing both the sides and on examination of the material on record, at the outset, it is needed to be mentioned that the order impugned is a common order passed in Special Civil Suit No.52 of 2002 on all applications preferred vide Exhibits 153, 157, 166 and 167. The civil suit being Special Civil Suit No.350 of 2000, was filed by the original plaintiff Shri Harishchandrasinh Bharatsinh Jadeja against four defendants, viz. (i) Kantilal Ambalal Patel, (ii) Dhananjay Vallabhbhai Patel, (iii) R.A. Desai and (iv) State of Gujarat. The parties compromised the suit and the judgment and decree was drawn on February 07, 2001.