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1997 DIGILAW 280 (CAL)

Puspa Rani Giri v. Prasanta Kumar Sahoo

1997-07-17

SUDHENDU NATH MALLICK

body1997
JUDGMENT The judgment of the Court was as follows : The instant revisional application under Section 115 of the Code of Civil procedure has been preferred by the plaintiff/petitioner against Order No. 36 dated 8.6.1994 passed by the learned Munsif. First Additional District Court, Contai in Title Suit No. 172 of 1989 thereby allowing the defendant/opposite party, No.6's application under Order 1 Rule 10 of the Code of Civil Procedure. 2. By the impugned order, the learned Munsif on the prayer of the defendant/opposite party No.6 added him as a defendant to contest the suit brought by the plaintiff/petitioner. 3. Mr. Sahoo, the learned Counsel appearing for the petitioner has submitted that the impugned order is a perverse order having been passed by the learned Munsif exercising Its jurisdiction illegally and with material irregularity and, as such, it requires to be set aside under Section 115 of the Code of Civil Procedure. 4. According to Mr. Sahoo, the opposite party/defendant No.6 is neither necessary party nor a proper party to the suit. Furthermore, the alleged transfer of a part of the disputed lands by deed of gift from this defendant No.5 is hit by Section 52 of the Transfer of Property Act. 5. Mr. Sahoo has also referred to a decision of the Supreme Court reported in (1) 1995 (3) Supreme Court Cases 147, Anil Kumar Singh v. Shivnath Mishra alias Gadasaguru where it has been held that by operation of Order 1 Rule 10(2) though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the Court must be satisfied that the presence of the party to be added would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. 6. The Supreme Court has further held that to bring a person as party- defendant is not a substantive right but one of the procedure and the Court has discretion in its proper exercise. 7. Mr. 6. The Supreme Court has further held that to bring a person as party- defendant is not a substantive right but one of the procedure and the Court has discretion in its proper exercise. 7. Mr. Sahoo has also referred to a recent decision of the Supreme Court reported in (2) 1997 WBLR (SC) 138, Sarvinder Singh v. Dalip Singh & Ors, where the Supreme Court has decided who is a necessary party or a proper party to a suit The Supreme Court has also considered the scope of Section 52 which prohibits the transfer of any property in suit by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be made therein, except under the authority of the Court. 8. Admittedly, the disputed transfer was made by the defendant/opposite party No.5 to the defendant/opposite party No.6 during the pendency of the aforesaid suit without obtaining any leave from the Court. Under such circumstances, the alleged transfer is hit by the provision of Section 52 of the Transfer of Property Act. 9. Mr. Manna, the learned Counsel appearing for the opposite party No.6 does not dispute such legal position. 10. By the impugned order, the learned Munsif bas allowed the defendant/opposite party No 6’s application under Order 1 Rule 10 sub-rule (2) of the Code of Civil Procedure on a illegally unsound reason. 11. The relevant portion of his order runs as follows ;- . "It is a well settled principle of law that if any party intends to be added as party he may be given opportunity to contest the suit. I do not find that as there is reason in adding defendant No.5 as party, so this transfer of property from his may be added as party." 12. This is neither logic for the law. 13. Order 1 Rule 10 sub rule (2) clearly lays down the powers of the Court to strike out or add parties. I do not find that as there is reason in adding defendant No.5 as party, so this transfer of property from his may be added as party." 12. This is neither logic for the law. 13. Order 1 Rule 10 sub rule (2) clearly lays down the powers of the Court to strike out or add parties. It is provided there that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary In order to enable the Court effectually and completely to adjudicate upon and settle all the que8tions involved in the suit, be added. 14 In the impugned order, the Court below has not come to any finding in the above context of law. He has not even considered the provision of Section 52 of the Transfer of Property Act. 15. Admittedly, the defendant/opposite party No. 5 has been contesting the suit by filling a written statement claiming his right to the suit property. The opposite party No. 6 shall stand or fall by the result of the suit through the defendant No.5. 16. Under the circumstances. I must accept the contention of Mr. Sahoo that the learned Munsif has allowed the opposite party/defendant No.5 to be added as a party defendant under Order 1 Rule 10 of the Code of Civil Procedure against the provision of law and the above legal principles laid down by the Supreme Court and that, as such, the impugned order shall not be allowed to stand. It may not be out of place to note that the present opposite party/defendant No.5 filed an application under Order 22 Rule 10 of the Code of Civil Procedure in the Court below which was rejected by the Trial Court by its order dated 17.3.1994. In the said order the Trial Court observed that the petitioner can be added as a party under Order 1 Rule 10 of the Code of Civil Procedure but no reasons were given nor any order to that effect was passed. In the said order the Trial Court observed that the petitioner can be added as a party under Order 1 Rule 10 of the Code of Civil Procedure but no reasons were given nor any order to that effect was passed. But subsequently by the impugned Order the Trial Court has allowed the defendant/opposite party No. 5's application Under Order 1 Rule 10 of the Code of Civil Procedure. The impugned order is bad in law and appear to have been passed with material irregularity and I am of the view that if such order is allowed to stand it would occasion failure of Justice and cause Irreparable injury to the petitioner. 17. The revisional application succeeds the impugned order is set aside. The opposite party/defendant No.6 be struck out by the Court below on the basis of the order. 18. No order as to costs. 19. Let a copy of this order be sent to the Trial Court by special messenger at the cost of the petitioner and such cost to be deposited within a week from this day. The Trial Court is further directed to dispose of the suit If it is otherwise ready for hearing within a period of three months from the date of communication of this order.