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1992 DIGILAW 208 (ORI)

JAMAL MOHAMMED v. SAUKAT ARA

1992-07-21

ARIJIT PASAYAT, D.M.PATNAIK

body1992
JUDGMENT : A. Pasayat, J. - Misc. Case No. 244 of 1992 is an application filed by the Lis pendens purchasers (hereinafter referred to as the 'purchasers' for recalling the order dated 7.2.1991 directing their impletion and Misc. Case No. 235 of 1992 has been filed by them to vacate the order of interim injunction granted against them restraining construction on the lands purchased by them. 2. Title suit No. 37 of 1985 to which this appeal relates was filed by the plaintiff-appellants for a declaration that the compromise decree passed in F.A. No. 252 of 1970 is not binding on them, alienation of lands by their mother is illegal, and for recovery of possession of the lands alienated by their mother. The suit has been dismissed by the learned Additional Subordinate Judge, Cuttack. During pendency of the appeal an application (registered as Misc. Case NO. 87 of 1991) was filed by the respondents 8 & 9 for impletion of 28 Lis pendens transferees on the ground that in clear violation of order of injunction passed by this Court, sale deeds were effected by the plaintiffs in favour of the aforesaid 28 persons and therefore, it was expedient in the interest of justice to implead Lis pendens transferees as respondents so that the actual controversy between the parties can be decided by avoiding multiplicity of proceedings. The prayer was allowed on 7-2-1991. It was observed by the Bench while disposing of the application that the application was to implead the Lis pendens purchasers, who, it was alleged, were proceeding with construction. ON 7-2-1991 another application (Misc. Case No. 88 of 1991) which was filed for injuncting the Lis pendens purchasers from proceeding with the construction was allowed as a temporary measure and interim injunction was granted. 3. We shall deal with the application for recalling the order of impletion first. It is the stand of the purchasers that impletion, if any, can be made at the behest of the plaintiffs or the Lis pendens purchasers, and it is not open to the Court to act on an application filed by the defendants. Reliance has been placed on the decisions of this Court in Narahari Mohanty and others v. Ghanashyam Bal and other, ILR 1963 Cutt. 841, Pranakrushna and others v. Umakanta Panda and otners., 1992 (5) OCR 17, and Indrajit Dandasena and Others Vs. Mangal Charan Dandasena and Others. Reliance has been placed on the decisions of this Court in Narahari Mohanty and others v. Ghanashyam Bal and other, ILR 1963 Cutt. 841, Pranakrushna and others v. Umakanta Panda and otners., 1992 (5) OCR 17, and Indrajit Dandasena and Others Vs. Mangal Charan Dandasena and Others. It is submitted that these decisions lay down an an invariable principle that only the plaintiff and the Lis pendens purchaser can ask for the impletion of parties and such a course is not open to the defendants. The Learned Counsel for the respondents 8 and 9 has submitted that the order directing impletion is irreversible. It is his further submission that a bare reading of Order I, Rule 10 of the Code of Civil Procedure. 1908 (in short, 'C.P.C') makes it clear that it is Courts discretion to decide as to who is to be impleaded in a proceeding. 4. For resolution of the controversy it is relevant to consider the provisions of the Order I, Rule 10 (2), C.P.C. One of the objects of Order I. Rule 10 (2) is to enable the Court to try and determine all the material questions between the parties and third parties and not merely the questions between the parties to the suit. The Court is primarily concerned with the questions whether the presence of the proposed party would advance complete and satisfactory adjudication of the subject-matter in controversy. Court has a wide discretion to implead a party if it considers the presence of such a party is essential or even desirable in the interest of justice. For applicability of the provisions of Order I, Rule 10 (2), C.P.C. it is not necessary that there should be an application from the parties. The Court has power to suo mote implead a party if it deems to be so necessary for effective adjudication of the right of the parties. A bare reading of Order I, Rule 10 (2). C.P.C, makes it clear that the discretion of the Court to direct impletion of parties is not dependent upon an application. It is crystal clear that even the defendant can move the Court for invoking jurisdiction of the Court for impletion of a party under Order I. Rule 10 (2) CPC. A bare reading of Order I, Rule 10 (2). C.P.C, makes it clear that the discretion of the Court to direct impletion of parties is not dependent upon an application. It is crystal clear that even the defendant can move the Court for invoking jurisdiction of the Court for impletion of a party under Order I. Rule 10 (2) CPC. The decisions on which reliance has been placed by the Learned Counsel for the purchasers related to fact situations where either Lis pendens purchaser or the transferor had moved the Court. In the background it was observed that the plaintiff or the purchasers can ask for impletion of the purchaser as party. That cannot lead a conclusion that none others except plaintiff or the Lis pendens purchasers could ask for impletion of the purchaser as party. If such a view is taken that would negate the legislative intent embodied in Order I, Rule 10 (2), C.P.C. The application by the defendant can also be constructed to be the foundation upon which the Court in its judicial discretion may decide to act suo motu. Since an application is not the sine quo non for application of Order I, Rule 10(2), C.P.C. the fact that the defendant made the motion is really of no consequence because it is Court's discretion to implead a party where the requirements of the rule are satisfied. It may also be profitable to refer to a decision of this Court in Biswanath Sahu Vs. K. Somanath Subudhi and Others. In that case it has been observed that it is open to a defendant to ask for impleading a party. This decision was sought to be distinguished by the Learned Counsel for the purchasers on the ground that on the peculiar facts involved in that case the decision was rendered and that related to impletion of the State and/or its functionaries. We are unable to accept that the said decision is distinguishable on that score. It rather explains the Scope and ambit of the powers of the Court under Order I, Rule 10(2). C.P.C, which as has been laid down in the case, can be invoked by the defendant. 5. It is also urged that in appeal there is no scope for impletion. This submission has also not merit. An appeal is a continuation of the suit. There being no limitation prescribed for. C.P.C, which as has been laid down in the case, can be invoked by the defendant. 5. It is also urged that in appeal there is no scope for impletion. This submission has also not merit. An appeal is a continuation of the suit. There being no limitation prescribed for. an application under Order I. Rule 10 (2). C.P.C. a Lis pendens transferee can bee impleaded at tin; appellate stage Our conclusion is fortified by two decisions of the Nagpur and Madhya Pradesh High Courts in AIR 1944 137 (Nagpur) and Devisahai Premraj Mahajan Vs. Govindrao Balwantrao and Others. Principles embodied in Order I, Rule 10 (2), C.P.C. apply to appeals. this Court on being satisfied that the impletion of the purchasers was necessary has accepted the prayer. 6. Before we part with this application we may notice another submission of Learned Counsel for the purchasers. It is urged that the purchasers are to either succeed or fail on the basis of adjudication of the claim of their vendors, and they should not be unnecessarily dragged to the proceeding. There is no compulsion on the purchasers to contest the case. They have been impleaded as pro forma respondents. It is open to them to either participate in the proceeding or be content with the participation of their vendors. We find no reason to recall the order dated 7-2-1991. The prayer for recalling the orders accordingly rejected. Misc. Case No. 244 of 1992 is accordingly disposed of. 7. So far as Misc. Case No. 235 of 1992 relating to injunction is concerned, it is submitted that in terms of Section 52 of the Transfer of Property Act a transfer is valid for all practical purposes and fate of transfer would ultimately depend upon the adjudication of the claims involved in the suit or in the appeal as the case may be. Therefore, the purchasers should not be injected from making constructions. It is additionally submitted that if they are permitted to continue with their construction work, they undertake not to claim any equities in the event of failure of their vendors. Attractive though the submission is, we are of the view that if the construction is allowed, the same is bound to change the nature and character of the. property. It is additionally submitted that if they are permitted to continue with their construction work, they undertake not to claim any equities in the event of failure of their vendors. Attractive though the submission is, we are of the view that if the construction is allowed, the same is bound to change the nature and character of the. property. It is the stand of the respondents 8 and 9 that the trial Court has recorded a positive finding about absence of right, title or interest of the plaintiffs in the properties which from subject- matter of transfers, That being the position, it is urged that there is no scope for varying the order of injection. It is also pleaded that the plaintiffs have flouted the order of injunction passed by this Court. We are not presently concerned with the question whether there has been any violation by the plaintiffs of the order granting injunction. Even if it is accepted as canvassed by the Learned Counsel for the purchasers that the sale deeds were executed in ignorance of the order of injunction, it would not be equitable to permit the purchasers to carry on construction. The defendants have succeeded in the suit. What would be the fate of the appeal cannot be judged at this state. But the success in the trial Court is certainly a factor to be considered in favour of the defendants. In our considered opinion, the order of injunction restraining construction is to operate till the disposal of the appeal. Further we have directed the appeal to be heard in the second week of August 1992. Misc. Case No. 235 of 1992for vacating the order of injunction is accordingly rejected. D.M. Patnaik, J. 8. I agree.