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Himachal Pradesh High Court · body

2000 DIGILAW 249 (HP)

PARVEEN KUMARI v. GANGI DEVI

2000-09-15

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This revision petition is directed against the order dated 14.1.2000 passed by the learned Sub-Judge, Barsar whereby an application moved by the petitioner under Order 1, Rule 10 read with Order 22, Rule 10 Civil Procedure Code and Section 151 Civil Procedure Code (hereinafter referred to as the Code) in Civil Suit No. 255/97, has been dismissed. 2. The admitted facts of the matter are that Civil Suit No. 255/ 97 between the plaintiff and defendants i.e. respondents herein (hereinafter referred to as the plaintiff-respondent and defendants-respondents respectively) is pending disposal in the Court of the learned Sub-Judge, Barsar. The suit has been instituted on 29-5-1997. During the pendency of the suit, defendant Shiam Lal through his attorney sold the land in suit to the petitioner. The petitioner-transferee moved an application under Order 1, Rule 10 and Order 22, Rule 10 read with Section 151 of the Code to implead her as defendant in the suit on the ground of purchase of the land by her from defendant Shiam Lal, claiming therein that impleading her as a party to the suit was necessary in order to deside the controversy in the suit /effectually and to do substantial justice in the matter. The application Was opposed by the parties to the suit. The plaintiff-respondent in her reply raised the preliminary objection that the application is vague and does not disclose sufficient reason to implead the petitioner as party. On merits, the sale by defendant Shiam Lal in favour of the petitioner was admitted, but it was averred that the sale has been effected despite stay order not to alienate the suit property and this fact was within the knowledge of the petitioner as her husband was the attorney of the seller who executed the sale deed. It is further averred that the petitioner is not at all a necessary party because of the alienation during the pendency of the suit. In the other reply dated 3-12-1998, it is averred that the petitioner is not a necessary party and the application has been filed just to delay the disposal of the suit and in case the petitioner is the affected party, she can file a separate suit. After hearing the parties, the learned trial Judge held that the petitioner is neither a necessary nor a proper party to the suit and accordingly dismissed the application. After hearing the parties, the learned trial Judge held that the petitioner is neither a necessary nor a proper party to the suit and accordingly dismissed the application. Hence, the present revision petition. 3. I have heard learned Counsel for the parties and have gone through the material placed on record. 4. The learned trial Judge has relied on Shri Basant Ram v. Smt. Mans Devi and others, SLJ 1974 MP 222, in arriving at the conclusion that the petitioner being a transferee during the pendency of the suit is not a necessary or proper party. In Basant Rams case (supra), this Court has held as follows:— "The central question should therefore be, whether the subsequent transferees were necessary parties to the suit. It is manifest, the suit is for injunction and in the alternative for possession. Admittedly the transfers were made during the pendency of the suit. The essential controversy is, therefore, between the plaintiff and the present defendants. The subsequent transferees, on the doctrine of lis pendens, are only entitled to a right which would devolve upon the defendants as a result to a decision in this suit. Even if a person on whom the interest of the plaintiff or the defendant devolves while the suit is pending, does not obtain leave of the Court under Order 22, Rule 10 for the continuation of the suit by or against him, he would still be bound by the result of the litigation and by the decree made in the suit (See: Gwalior and Northern India Transport Company Limited v. Dinkar Durga Shankar Joshi, AIR 1955 Madhya Bharat 214). Therefore, neither the matter in dispute exists between the subsequent transferees and the plaintiff, nor the presence of subsequent transferees is necessary in order to decide such a dispute effectually and completely. Not it can be stated that the presence of subsequent transferees is required to settle all questions involved in the suit. The test to determine as to whether a party necessary to a suit is to find out if there is a right to some relief against such party in respect of the matter involved in proceedings in question and secondly to ascertain whether it would not be possible to pass effective decree in the absence of such a party. Both the tests are not satisfied in the present case. Both the tests are not satisfied in the present case. Therefore, when the learned Sub-Judge did not consider that these subsequent transferees were necessary parties and rejected the application of the plaintiff for impleading them, it cannot be stated that he committed an error in exercise of jurisdiction or committed an act with illegality or with material irregularity." 5. The material portion of Order 1, Rule 10 of the Code reads as follows:— "Court may strike out or add parties. (2) 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 questions involved in the suit, be added." 6. A bare reading of the aforesaid provision makes it clear that the Court has the powers to implead parties at any stage of the suit before a final decree is passed provided that such party ought to have joined as such in the suit or whose presence before the Court may be necessary in order to effectually and completely adjudicate upon all the questions involved in the suit. The object of the rule is not to change the nature and character of the suit, but is to avoid unnecessary litigation which might otherwise become necessary. 7. Order 22, Rule 10 of the Code reads as follows:— "R. 10. Procedure in case of assignment before final order in suit.—(1) In other cases of an assignment, creation or devolution of any interest during the pendency of the suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." 8. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." 8. The rule enables the Court to continue with the trial of the suit even in the event of devolution of the interest of the party in the subject matter of the suit on a stranger to the suit and also enables the person acquiring such interest to continue the suit with the leave of the Court. However, if he does not chose to join the suit, it may be continued with the original party and the person acquiring the interest during the pendency of the suit will be bound by or can have the benefit of the decree, as the case may be. 9. On a combined reading of the aforesaid provisions even in a case where any interest in the suit property during the pendency of the suit devolves, the transferee may be joined as a party so as to avoid multiplicity of litigation. 10. In case Khemchand Shankar Choudhari and another v. Vishnu Hari Patil and others, (1983) 1 SCC 18, the Honble Supreme Court while considering application of the provisions of Section 54 and Order 22, Rule 10 of the Code and Section 52 of the Transfer of Property Act held as follows:— "Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate Court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the Court to be impleaded as parties they cannot be turned out." (Emphasis supplied) 11. In Savitri Devi v. District Judge, Gorakhpur and others, (1999) 2 SCC 577, the Honble Supreme Court held as follows:— "Order 1, Rule 10 Civil Procedure Code enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision of the Code." (Emphasis supplied) 12. In view of the above proposition in law, it could not have been held legally that the petitioner despite being a transferee of the interest of one of the defendants is neither a necessary nor a proper party and could not have been impleaded as such even in view of the provisions of Order 1, Rule 10, Order 22, Rule 10 of the Code. The learned trial Judge has, therefore, committed material irregularity in exercising the jurisdiction and the impugned order is thus not sustainable. 13. As a result, this revision petition is allowed. The learned trial Judge has, therefore, committed material irregularity in exercising the jurisdiction and the impugned order is thus not sustainable. 13. As a result, this revision petition is allowed. The impugned order is set aside and the application of the petitioner to implead her as a party defendant to the suit is allowed. 14. Parties are directed to appear before the trial Court on 6-10-2000. Civil revision allowed. -